Simplification for Nature Restoration Projects

Following on from our note on the EU Simplification Agenda, we are now looking specifically at the issue of environmental assessment for nature restoration projects.

Nature Restoration Law (NRL)

The Nature Restoration Law is a directly applicable Regulation 2024/1991 that came into force on 18 August 2024. It implements components of the EU Biodiversity Strategy for 2030 and sets binding targets to restore degraded ecosystems. It requires Member States to put in place measures to restore at least 20% of the EU’s land and sea areas by 2030 and all ecosystems in need of restoration by 2050.

The scope of the NRL is remarkable. It encompasses, for instance, forests, peatlands, the marine environment, rivers, soil and subsoil, agricultural lands and the seabed.

Nature Restoration Plan (NRP)

All Member States are required to produce a National Restoration Plan within two years of adoption. Ireland’s fourth National Biodiversity Action Plan (2023 to 2030) commits to putting a national Nature Restoration Plan (NRP) in place and the National Biodiversity Action Plan will be updated by 2027 to include Ireland’s National Restoration Plan.

At present, the NPWS is drafting Ireland’s first NRP and this is due to be submitted to the EU Commission in the first week of September 2026, during the terms of Irish Presidency of the EU.

The Wildlife (Amendment) Act 2023 introduced a new public sector duty on biodiversity: every public body, as listed in the Act, is obliged to “have regard to” the objectives and targets in the National Biodiversity Action Plan.

NRPs should include a timeline for implementation, the financial resources needed and intended means of financing, as well as expected benefits, especially for climate change adaptation and mitigation. Member states need to identify, synergies with other policies, such as climate change mitigation and adaption, disaster prevention, agriculture, fisheries, forestry and renewable energy development.

Member States can mobilise the necessary funds from public and private sources, including from EU funds. They can draw from a variety of EU funding opportunities, including the common agriculture policy funds, regional funds, the LIFE programme, Horizon Europe (the EU research fund) and the European Maritime, Fisheries and Aquaculture Fund.

Land Use

Article 14 of the NRL requires that Member States shall identify synergies with climate change mitigation, climate change adaptation, land degradation neutrality and disaster prevention and prioritise restoration measures accordingly.

Member States shall also take into account: (a) their integrated national energy and climate plans referred to in Article 3 of Regulation (EU) 2018/1999; (b) their long-term strategy referred to in Article 15 of Regulation (EU) 2018/1999; (c) the binding overall Union target for 2030 set out in Article 3 of Directive (EU) 2018/2001. They shall, furthermore, coordinate the development of NRP with mapping of areas to fulfil their 2030 targets and where relevant the designation of RAA and dedicated infrastructure areas.

It is noted that in accordance with the requirements of RED III, Ireland is also currently undertaking an exercise of ‘National Territory Mapping’ that identifies the areas nationally that are available for development of renewable energy. That exercise was interpreted as requiring simply a presentation of the lands currently available under various existing plans and unfortunately, the map when overlain with constraints including protected sites, built up areas and otherwise unsuitable locations leaves very minimal amount of space for new renewable energy projects. It is known, furthermore, that many operational windfarms are situated in locations that have, since their construction, been designated as protected sites. This introduces significant new uncertainty as regards how authorisation for their extension of life or repowering can be legitimately authorised in accordance with both RED III and the Birds and Habitats Directives.

The ‘Simplification Agenda’

The EU Simplification Package, to be effective in is goal of policy coherence, must address the overlap between the various legal requirements that overlap in terms of land use in the broadest sense.

The NRP and national territory mapping could usefully be aligned under coherent law and policy provisions so that carbon sequesterisation, biodiversity enhancement and abundant provision for renewable energy infrastructure can be validly and effectively aligned. The targets for afforestation and peatland restoration, in particular, will inevitably arise within less populated and developed regions that would also be potential sites for renewable energy projects. An overarching and coordinated approach to both requires legal facilitation in order that these objectives may be facilitated and advanced in tandem.

Such coordination will need to include a position regarding the location of renewable energy within and proximate to protected sites. This includes provision for grid, extension of life for existing projects that now sit within protected sites and guidance as regards what constitutes ‘appropriate and necessary’ mitigation in such circumstances. It is suggested that Member States can consider novel approaches in this regard such as the utilisation of Article 6(1) Habitats Directive to draft objectives in respect of such protected sites that provides scope to direct and coordinate Article 6(4) compensation measures in respect of multiple such projects within a particular protected site.

Further alignment is necessitated with regard to the overlapping but uncoordinated requirements of LULUCF (the Land Use, Land-Use Change and Forestry sector) and the Land Use Review process. LULUCF can be understood as an accounting system for each member State’s greenhouse gas inventory and given its scope, LULUCF emissions can be negative or positive (where the categories operate successfully as carbon sinks). In Ireland at present, our land is a net source of greenhouse gas. As the NRL takes effect in accordance with our commitments within the forthcoming NRPs, if done properly, it could become positive.

Separately, Ireland’s Programme for Government commits to a Land Use Review. Phase 1, led by the EPA was published in 2023 and the update, while complete, has yet to be made public. It was designed as an evidence base to inform and support ‘decisions about future land use in the context of achieving Ireland’s agricultural, socioeconomic, climate and environmental objectives’.

The obligations that have been imposed upon Member States are onerous in terms of the complexity and at times unworkability of compliance with this range of requirements. A coherent reconstruction of these disparate obligations is necessitated in order to render them effective and aligned. This coherence at EU level would be a welcome component of EU Simplification but can be proactively actioned at Member State level also.

Environmental Assessment of Nature Projects

While highly specific requirements may be set for buildings in terms of materials, energy rating, outputs etc, the same cannot be said for nature. Nature operates in interconnected and often unpredictable ways and scientists working on restoration programmes continually emphasise the need for facilitation of adaptive management practices rather than binding commitments at the planning stages.

The EU Directives that set the environmental assessment parameters are designed to manage and limit the development of infrastructure. Likely significant effects cannot be anticipated with regard to nature restoration works with the level of precision required within those assessments more broadly. Restoration works will alter the vegetation on site and therefore the types of species that will occupy those habitats will change. This will ‘disturb’ some species and attract others. At present, the terms of the EIA and Bird and Habitats Directives do not provide for this.

Furthermore, the CRCF Regulation (Regulation 2024/3012) designed to ‘facilitate and encourage’ private sector investment into nature restoration projects has introduced a new environmental test. The test of ‘Do No Significant Harm’ (DNSH) as provided for under article 17 of the Taxonomy Regulation. This test does not correlate with existing environmental assessments (SEA, EIA or AA) and in fact introduces a new and additional requirement that must now be understood and applied in addition to those other requirements.

The EU Commission’s explanatory text in this regard, sets out the distinction as follows:

Complying with the applicable EU and national environmental law is a separate obligation. It does not waive the need for a DNSH assessment.
Environmental impact assessments (EIAs, SEAs) and sustainability proofing of a measure also do not automatically entail that no significant harm is done– but should be taken into account for the DNSH assessment
To substantiate compliance with DNSH, Member States are not required to refer to the ‘technical screening criteria’ established according to the Taxonomy Regulation, but they have the option to rely upon them

It is all but impossible to reconcile this stacking of differing tests with the EU simplification agenda.

Noting the scientifically inexact nature of nature restoration works, it is considered that this is an inappropriate test. Appropriate safeguards would relate to monitoring, supervision, involvement of appropriate specialists and the capacity to adapt practices as outcomes are observed. This is often also the appropriate approach in relation to climate action when land owner empowerment is required where storms fell or damage forests and impacts must be dealt with in real time.

This is not a flaw that arises from the manner in which Member States implement EU environmental law – it is a flaw at source. At present, that recognition appears to be absent from the proposed terms of the simplification package.

Interim Approach

Pending the necessary reforms, a proactive and purposive approach is needed within Member States to facilitate achievement of the wide range of EU objectives designed to address the need for climate mitigation, energy security, biodiversity protection and enhancement and climate action. A plan led approach is mandated and coordinated efforts of various government Departments and agencies is needed.

The EU grants that are available must be sought out and obtained – to advance required initiatives and help offset pending fines. It is noted for instance that the Commission approves €1.3 billion German State aid scheme for rewetting of farmed peatlands and it may be considered that this could set a precedent for significant Member State investment, if the process is managed correctly.

This all requires resourcing, funding and expertise. Please do not hesitate to contact members of our team in Philip Lee for guidance as regards how best to comply with the requirements of the full body of environmental law in accordance with EU and Irish law. We have deep expertise with regard to addressing these myriad challenges.