History in the making?

3 November 2021

Written by: Etelle Higonnet & Nicole Polsterer

History in the making?

The science is clear. Agriculture is the biggest driver of deforestation on the planet. But that’s not the only problem.

Agricultural deforestation is behind myriad land grabs and other human rights abuses, all to feed our insatiable demand for the seven highest forest-risk commodities: beef, soy, palm oil, pulp and paper, rubber, cocoa, and coffee.

So when the United States (US) and the European Union (EU) - two of the biggest consumers of these goods –move to end this destruction, the ramifications are potentially huge for forests, the climate, and humanity.

The US and the EU are the world’s second and third largest economies respectively after China. In 2020, it’s estimated that the US imported more than $5 billion of raw commodities and derivatives directly from countries with a high risk of illegal deforestation. In 2017, the EU was found to be the second-largest importer of agricultural commodities linked to tropical deforestation after China.

Now, finally, both are initiating new laws to help stop this.

Just as it did with the Lacey Act, which aimed to halt the illegal timber trade, US legislators have moved first, by proposing a regulation to remove deforestation from US agricultural imports. A bipartisan group of US Senators introduced a bill to restrict US market access for commodities originating from illegally deforested land, called the Fostering Overseas Rule of Law and Environmentally Sound Trade (FOREST) Act.

But there is also bad news.

The US bill has been published and we have seen a leaked version of the EU’s proposed regulation, meaning we are already able to analyse the strengths and weaknesses of both laws.

First, tackling human rights violations is not sufficiently addressed in either law. Indigenous Peoples and traditional local communities manage more than one third of the world’s intact forests and 80% of all terrestrial biodiversity lives on their lands. Their territories have lower deforestation rates than other forest areas, yet their rights are under attack, especially in Brazil, Indonesia, and the Congo Basin where they face discrimination, land grabbing and violence – even killings.

As the window for limiting warming to 1.5°C closes, Indigenous rights and knowledge need to be recognised as essential in fighting the climate crisis. Moreover, in the very agriculture that destroys forests, workers are frequently exploited, with smallholder farmers experiencing dire poverty, child labour, and even slave labour.

Neither the EU draft legislation nor the FOREST Act defend rights strongly enough, though this can still be amended.

Second, partnerships and dialogue with producer countries seem to be an afterthought for the EU, while the US has adopted a ‘top down’ approach. The EU simply proposes to rate trade partner countries’ risk of deforestation and inform the countries of their status. The countries’ status would then trigger higher scrutiny of EU enforcement bodies. It would be fairer, shrewder and more effective to engage trade partners before, during, and after such determinations – in order to create opportunities for producer countries to eradicate deforestation before the EU law gets triggered. To make the laws a success, the EU could engage far more robustly and prepare trade partners for the coming regulations. This might also ensure smallholder farmers’ livelihoods are not harmed.

Though different in style, the US also adopts a potentially unilateral approach in dealing with trade partners, with the US Trade Representative drafting an Action Plan for a country considered risky. Engaging with a broad spectrum of stakeholders in producer countries exporting agricultural goods to the US will likely be crucial.

Third, civil society is hardly included in the EU’s proposal. Here we see a notable distinction between the EU and US laws: In the US, an advisory committee that includes civil society and companies, should ensure the programme is implemented. Given all its myriad strengths, many US NGOs have widely endorsed the FOREST Act.

Fourth, both laws could leave crucial ecosystems at risk. For instance, both regulatory proposals fail to forbid the conversion of grasslands and other biodiverse ecosystems for agriculture. This is a glaring mistake because such biomes are already at high risk for further conversion – especially for soya in the vibrant and irreplaceable Latin American ‘Cerrado’ and ‘Chaco’ ecosystems.

Last, the EU’s initial list omits key commodities. For the US, high-risk commodities whose imports could be restricted are palm oil, rubber, cocoa, and coffee. The US is largely self-sufficient for soy and beef, meaning that its vast consumption of these products harms domestic ecosystems rather than tropical forests. Unfortunately, it looks likely the EU will fail to include rubber, despite the devastating impacts it has on forests and people in Southeast Asia and Africa. This is probably due to them capitulating to pernicious lobbying by the European Tyre and Rubber Manufacturers Association, ERTMA. The EU also looks poised to omit leather in a bizarre calculation that beef is destroying the Amazon and must be regulated, but leather from the same cows doesn’t matter!

However, there is still a slim hope that the EU could do the right thing.

Despite its relative weakness, there is one place where the EU law will probably go a step further than its US counterpart. It will likely go beyond prohibiting illegal deforestation, by asking for all deforestation after 2020 to be eliminated for goods entering its markets. These goods include 6 of the 7 highest risk commodities, namely beef, soya, palm oil, cocoa, coffee, wood and certain derived wood products.

Ultimately there is much to love in both laws, and the flaws can be easily fixed.

While many industry groups repeatedly support the EU law and some multinational consumer goods companies have recently reiterated a call for it to be finalised, the EU’s proposal must address the loopholes before EU civil society can fully support it. We are at an historic moment in the wider fight to end tropical deforestation, save the planet’s lungs, and with it, humanity. Let’s not blow it.

Etelle Higonnet is a Senior Advisor at the National Wildlife Federation.
Nicole Polsterer is Fern’s Sustainable Consumption and Production campaigner.

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