In August 2024, the Regulation on Nature Restoration entered into force as part of the EU 2030 Biodiversity Strategy and the Green Deal. It follows in the footsteps of the Nature Directives, the 1992 Habitats Directive and the 2009 Birds Directive, yet marks a unique milestone by quantifying goals for nature restoration.
The fact that the EU has geared up and switched the focus from conservation to restoration speaks volumes about the effectiveness of the previous legislation. The 2020 State of Nature report of the European Environment Agency (EEA) confirmed that, despite serious efforts, European biodiversity keeps declining.
Three remarkable innovations
The Nature Restoration Law (NRL) includes three crucial innovations by explicitly focusing on urban ecosystems, broad ecological connectedness, and the connections between healthy ecosystems and animal and human health.
First, Article 8 is specifically dedicated to the restoration of urban ecosystems. By 2030, Member States need to ensure no net loss in the total national area of urban green space and urban tree canopy cover, while an increasing trend towards self-imposed goals should begin no later than 2031. This attention paid to urban ecosystems is a small revolution in the environmental framework of the EU. Even though the Court of Justice of the European Union (CJEU) had confirmed that endangered species remain protected in urban contexts in Case C-88/19 and C-477/19, the words ‘urbanization’, ‘urbanized’, ‘urban’, ‘suburb’, ‘city’, ‘cities’ and ‘town’ did not appear once in the previous Nature Directives. In the NRL, the word ‘urban’ features more than seventy times, and there are about thirty mentions of ‘city’, ‘cities’ and ‘town’. This broader vision of valuable ecosystems recognizes the fact that human civilization is not strictly separable from nature.
Second, the NRL focuses on ecological connectivity. For forests, connectivity refers to their density, while for rivers, it refers to the number of linkages that exist between bodies of water. Connectivity is crucial, as it is allows species to move more freely and protects biodiversity. Recital 47 specifically mentions urban ecosystems as a link between agricultural and forest habitats for birds and pollinators. Other recitals go on to mention the connectivity of rivers (recital 50) wetlands (recital 60) and forests (recital 62). Recital 65 recommends international cooperation to ensure ecological connectivity across state borders. Article 9 NRL, then, instructs Member States to make an inventory of artificial barriers in connected surface waters, and to remove them. In doing so, priority should be given to ‘obsolete barriers’, which refers to barriers that no longer serve purposes such as renewable energy production, navigation, water supply or protection against floods. In total, the word ‘connectivity’ features more than twenty times. This sensitivity to connectivity recognizes the importance of place and spatial distribution. Neither the Habitat Directive nor the Birds Directive mentioned the word ‘connectivity’ once.
Third, the NRL makes a non-geographical connection explicit: the connection between healthy ecosystems, animal health and human health. Through referencing the One Health approach, Recital 22 inserts the NRL into a global project that brings together different facets of health. The earlier Nature Directives only use the word ‘health’ in a context where concerns about human health and public safety allow for a deviation from environmental protection (Articles 6(4) and 16(1)(c) Habitats Directive and Article 9 Birds Directive). While the protection of human health has long been included as a consideration for EU environmental policy in Article 191(1) of the Treaty on the Functioning of the European Union (TFEU), this is the first large piece of EU nature legislation that draws the connection explicitly, even though it still does not create direct obligations in relation to human health.
The missing link: equitable distribution of urban green
In light of these new developments, an important element is, however, still missing. Despite the explicit recognition of the value of urban ecosystems, a focus on connectivity, and attention for nature’s impact on human health, there is no consideration of the connection between urban residents and urban green. While Recital 47 highlights a few benefits from urban ecosystems, mentioning a cooling effect, less run-off and climate resilience, it does not discuss the health benefits of urban green spaces in detail. Rather, it says that “[i]ncreasing the level of urban green space will, in many cases, improve the health of the urban ecosystem”. A sensitivity to the distribution of green spaces in urban areas is lacking.
Especially the lack of distributive provisions is not just regrettable, but a flaw that threatens to undermine the logic and coherence of the law. Whereas considerations of place and health have been acknowledged on a large scale, the NRL does not transfer those insights to the framework for urban ecosystems. Nevertheless, the regreening of cities is an opportunity to transform and restore human-nature relationships.
Why it matters: health, justice and public support
Access to urban green spaces has been linked to countless health benefits, for example by the WHO regional office for Europe.Green spaces reduce heat, improve air quality, buffer excessive noise, inspire physical activity, foster a sense of tranquility, and support feelings of social cohesion. This can lead to improved sleep, better mental health, lower risks of cardiovascular diseases and diabetes. Green spaces also have a positive influence on the development of children, such as supporting the development of gross and fine motor skills and enhancing physical, social, cognitive and emotional development.
The legacy of environmental justice asks environmental legislation to be sensitive to the ways in which impacts of environmental regulation are distributed amongst communities. While the Environmental Justice Movement originated with a strong focus on environmental harms, it also supports fair access to natural resources in urban contexts. An increase in green spaces that does not consider equal distribution could result in a situation where only certain urban residents reap the various health and welfare benefits. A consequential high concentration of urban green spaces in some areas could also lead to intensified gentrification that pushes socio-economically vulnerable populations away. A report of the EEA has shown that that risk is not hypothetical. As wealth inequality is still very prevalent within European Member States, attention for distributive justice is crucial.
A fair distribution of green areas can also entail advantages for policy makers, as regular contact with natural environments is found to stimulate behavior that is beneficial to the natural world (WHO regional office for Europe, page 8). Contact with nature is especially impactful for children, as a link has been found between childhood experiences in nature and adult environmentalism. In brief, by paying attention to the distribution of restored natural areas, the NRL could increase intergenerational support for its own implementation.
Barriers: legal and political
Despite the importance of fairly distributed and accessible green spaces, it might not be surprising that the NRL operates at the aggregate level, given that it is embedded in the 2030 Biodiversity Strategy and the Green Deal. And, even if the Commission had the intention of including distributive considerations, it would be confronted with a legal and political obstacle.
The EU’s competence to legislate on the environment is laid down in Articles 191 and 192(1) of the TFEU. While Article 191 makes a direct connection between environmental protection and human health, the subsidiarity principle complicates legal provisions on distributive justice. Laid down in Article 5(3) of the Treaty on European Union (TEU) and Protocol (No 2) on the application of the principles of subsidiarity and proportionality, the subsidiarity principle authorizes the EU to intervene in non-exclusive competences only if the policy objective cannot be adequately achieved through member state action only. While the Commission has argued that transboundary ecosystem degradation and loss of biodiversity justify an intervention at the EU level (COM/2022/304), that argument is more difficult to make when it comes to urban environmental justice. Nevertheless, given that the CJEU has offered strong protection to issues of human health in the past (see, for example, C‑358/14), it is hard to predict whether the CJEU would completely rule out provisions that ask states to consider the equitable distribution of health benefits stemming from urban green spaces.
The tension with the subsidiarity principle is explicitly addressed under the Environmental Title of the TFEU, in Article 192(2)(b). The provision gives the Council the authority to adopt measures that affect town and country planning or, more generally, land use. Provisions on the distribution of urban green spaces could qualify as such measures. While these powers are extensive, they can only be exercised through the special legislative procedure that requires unanimity. So, even if the Commission had wanted to include provisions that affect planning and land use in the NRL, it might have been difficult politically. In its present form, the NRL was adopted by a qualified majority of the Environmental Council, which would have been insufficient to adopt provisions that affect urban planning and land use.
The path of least resistance: national implementation plans
While the EU faces serious institutional barriers to directly legislate on distributive environmental justice, national implementation plans could easily take on that role and fill the gap in the NRL. Article 16 of the NRL stipulates that Member States need to submit drafts of those plans by September 2026. Even though there is no explicit legal obligation to consider environmental justice in the NRL, Member States can devise implementation plans that consider the distribution of green spaces while respecting their internal legal division of powers.
Practically, states could rely on quantitative models such as the 3-30-300 rule, which suggests that everyone should be able to see three trees from their home, that neighborhoods should have a 30% canopy cover and that homes should be no more than 300 meters away from a high-quality green space. Alternatively, implementation plans could provide for procedural guarantees for community participation to ensure that communities can participate in the shaping of their green spaces.
Enforcement through human rights litigation
While a legal obligation to ensure distributive environmental justice is lacking in the NRL, the supranational level provides some legal opportunities to enforce an equitable distribution of urban green space. If Member States do not consider the distribution of green spaces in their national implementation plans, human rights litigation at the supranational level could be used by citizens to demand distributive environmental justice from their respective Member State.
The Charter of Fundamental Rights of the EU has one provision that makes explicit reference to the environment. Article 37 provides that “[a] high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”. While this provision lacks reference to a clear right that is owed to specific individuals, it has been cited in several recent judgments on environmental matters, both by the CJEU and national courts (including the Dutch Court of Appeal in the case between Milieudefensie and Shell). Even though Article 37 does not establish an individually justiciable right, the CJEU has relied on Article 37 in combination with other human rights (C-626/222) and has used the article as an interpretative tool for secondary legislation.
As all EU Member States are party to the European Convention on Human Rights (ECHR), citizens can also turn to the European Court of Human Rights (ECtHR) to ask for equitable national implementation policies. While the ECHR does not textually protect the right to a healthy environment, the Court recognizes the connections that exist between the environment and human rights. The environment has been connected to the right to life, the right to respect for private and family life, and the home, and the protection of property, amongst others. The right to life is especially promising in the context of unhealthy urban living conditions, since it implies a positive obligation for states to take steps to protect the lives of people in their jurisdiction.
In its 2024 KlimaSeniorinnen judgment (53600/20), the ECtHR found that insufficient climate action by the Swiss government constituted a violation of the right to respect for private and family life of elderly people. Increasing heat waves exacerbated by climate change constituted the direct link between government conduct and health impacts. In a similar vein, it could be argued that a lack of accessible urban green spaces might constitute a human rights violation.
Supranational regulatory possibilities
Lastly, despite the constitutional asymmetry, there are some possibilities for the EU to promote distributive justice in nature restoration in the future. By focusing on the importance of ‘accessibility‘, different legal pathways on the supranational level could lead to more fairly distributed urban green spaces.
First, the EU judiciary could underscore the ‘One Health’ approach as raised in Recital 22 of the NRL. Arguing that accessibility of green spaces is necessary to achieve the overarching aim of nature restoration that effectively benefits human health, the courts could read concerns of accessibility, including geographical proximity, into the legal provisions of the NRL. As mentioned, such a reading is further supported by Article 37 of the Charter.
Second, an amendment to the NRL or future instruments could explicitly introduce the concept of accessibility, especially for urban green spaces. Since accessibility is a wide concept that is tied to human health (Article 191(1) TFEU) and that can be considered in the aggregate across the EU, it might be less sensitive under the subsidiary principle than geographical distribution. Alternatively, the EU could promote distributive environmental justice through procedural requirements that ask Member States to share best practices on nature accessibility, or to report on the distributive impacts of urban nature restoration. This could be justified under Article 191(1) TFEU as practices of data-gathering and knowledge-sharing to promote human health across the EU, while also providing information to citizens.
Third, the EU could use supplementary non-binding instruments such as recommendations or opinions to promote nature restoration policies that take into account the distributive effects in urban areas. This would not be a first. In the context of urban transportation, the Commission has published a communication on ‘The New EU Urban Mobility Framework’, in which it asks Member States to work on sustainable and smart urban mobility.
Conclusion
The NRL is innovative by including urban ecosystems, paying attention to connectivity and explicitly mentioning environmental health impacts. Nevertheless, the logical combination of these three innovations is missing: the NRL does not address the spatial distribution of urban green spaces, which is crucial for human-nature connection and the health of urban residents. While that omission can be attributed to the constitutional asymmetry of the EU, member states do not face the same legal barriers.
Member States have until September 2026 to prepare their implementation plans. Ideally, they use that time to consider how they want to include distributional questions, and how they will tackle challenges such as eco-gentrification and urban sprawl. Such implementation plans would contribute to the coherence of the NRL and benefit the health of urban residents across the EU. By proactively pursuing distributive environmental justice, states can support the ‘One Health’ approach and the wider democratic legitimacy of the European Green Deal. Proactive action also reduces the risks of future human rights litigation or regulatory tightening that can be expected as the effects of climate change will increasingly be felt across European cities.
Joanna Wils is a U.N. Youth Delegate for Sustainable Development at the Flemish Youth Council, holding an LL.M. in Environmental & Energy Law from NYU School of Law. She is currently serving as an International Law and Human Rights fellow of the NYU Center for Human Rights & Global Justice.