Enforcement measures are being watered down in the new EU regulation on deforestation, a recent leak of the regulatory draft reveals.
The regulatory proposal, which the European Commission is set to publish on 17 November 2021, aims to restrict products linked to deforestation from entering the EU market, a goal broadly supported by NGOs. However, a leaked draft from October 2021 reveals that a host of enforcement measures, present in a previous draft, have been removed from the more recent version. The removed text included a plan to publicly list companies that violate the regulation, as well as a provision for victims of violations to bring companies to court. This is concerning, as the EU’s existing regulation on commodity supply chains – the EU Timber Regulation (EUTR) – faced problems precisely to do with its enforcement. NGOs will be critical of a regulation that that ticks a ‘due diligence’ box on paper but contains no credible plan for ensuring that it is met in practice – including genuinely dissuasive consequences for companies.
We understand that a more recent version of the regulation would allow companies to rely on certification to satisfy the deforestation-free requirement. But NGOs are strongly critical of certification’s abilityto play this role. While operators could use certification as part of their risk assessment and mitigation exercises, the well-documented flaws in certification schemes mean they must not be used to absolve companies of their legal repsonsibity to do due diligence.
An enduring concern has been that key forest-risk commodities – maize, leather and rubber – have been left out of the regulatory proposal. An unpublished draft of the regulatory impact assessment excluded two of these commodities on the basis of a cost-benefit analysis – but academics have just written to the European Commission showing this analysis had serious flaws. Concerns remain that rubber was excluded not for scientific reasons, but rather because of a strong push from industry.
NGO concerns remain on other points, including the exclusion of community tenure rights, of non-forest ecosystems, and of a robust plan to work with producer countries to implement the regulation. That the issue of community tenure rights will be treated exclusively in a more general DG Justice and DG Commerce measure, rather than reinforced in this regulation, is an ongoing disappointment.
Once the Commission has published its regulatory proposal on 17 November, it will go to the European Parliament and EU Member States for their inputs. If all come to agreement relatively quickly, the regulation could be finalised before the end of 2022.