- European Union governments are today expected to give a final go-ahead to a new law meant to prevent the bloc driving deforestation overseas through its consumption of beef, soy, palm oil and four other commodities linked to global forest loss.
- The groundbreaking rules could cut a vital cash flow to forest-destroying firms, with huge impacts for biodiversity and the climate.
- However, Sam Lawson, Director of London-based NGO Earthsight – which has been monitoring these issues for years and helped lobby for the new legislation – argues that the biggest challenge has yet to come: enforcement. And success is far from assured.
- This post is a commentary. The views expressed are those of the author, not necessarily of Mongabay.
In mountaineering, it is said, 80 per cent of fatalities happen on the descent. When you reach the summit, you are less than half way to any meaningful measure of success. Something similar could be said of efforts to stop Europe ravaging the world’s forests.
After years of negotiations, the European Council is today expected to give final approval to an EU law which aims to remove at a stroke one of the biggest things driving the destruction of precious, climate-critical forests across the globe, from the Amazon to Indonesia.
The EU Deforestation Regulation, as it has become known, will ban the import of the commodities whose production contributes significantly to forest devastation worldwide, and force importers and big retailers to take steps to minimize any chance they contribute to such destruction.
The new EU legislation is the toughest ethical supply chain law of any kind ever enacted in a major consuming market
Enacting this ground-breaking law will be an enormous achievement. It is the result of tireless campaigning by organizations dedicated to protecting forests and forest dwellers, something which is not only critical to protecting biodiversity but also to tackling the climate emergency. In almost every key forest country on the planet, the biggest threats to forests are commercial agriculture and logging. Both supply exports to wealthy countries, with the EU one of the largest markets for these tainted goods.
By choking off this trade, we can halt a crucial cash flow to deforesters. The EU law will also serve as an important international benchmark for other major consumers of so-called ‘forest-risk commodities’ like wood, soy, palm oil and beef. The US is already considering its own similar legislation. Brazil is seeking action from China. If the buying stops, the cutting can too.
“Law without enforcement is just advice”
The EU Deforestation Regulation’s importance goes beyond forests. Rampant consumption in rich countries has other terrible consequences overseas, especially in the Global South. The legislation will be the toughest ethical supply chain law ever enacted in a major consuming market. It will set a new bar for action to address the trade in goods relating to other scandalous practices, such as child labour, conflict, corruption and land-grabbing.
But there is a problem. Enforcement.
Laws without enforcement, as Abraham Lincoln reputedly once said, are just “advice”. And when it comes to this issue, we know advice is not enough. Academics, governments, advocacy groups and others have been advising European companies to clean up their supply chains for years, to little effect.
Will the authorities ensure the law is followed? Past experience, sadly, suggests that the odds of this happening are not great.
Way back in 2010, a similar law was passed. The EU Timber Regulation (EUTR), which inspired the law that is set to subsume it today, sought to halt imports of wood into Europe which had been illegally harvested. It came into effect a decade ago, and has been a failure.
The evidence, exposed by NGOs and journalists, has piled up. The number of cases is too long to list, but includes: teak from Myanmar, banned logs from Ukraine, lumber and furniture from some of the biggest illegal logging cases in both Siberia and the Russian Far East, flooring linked to alleged corruption in Brazil, as well as illegal logs and lumber from the Congo. Obvious breaches of the law went unnoticed and unstopped in every significant EU importing country: France, Belgium, Germany, the Netherlands, Italy. Everywhere.
The trade data doesn’t lie. The EU’s own study concluded in 2021 that the EUTR had had “no significant effect on the volume of timber imported from known high-risk sources”.
The study identified two causes of this failure. The first was “inconsistency” between member states over compliance checks and penalties issued for rule-breaking. Basically, some (but not all) unnamed EU countries hadn’t been doing their job properly. The second was a technocratic issue relating to a key word in the text of the legislation.
Like the EU’s incoming Deforestation Regulation, the EUTR coupled an import ban on non-compliant products with a requirement for companies to reduce the risk of receiving such goods to a “negligible” level. Given the difficulties of proving wrongdoing overseas, this additional “due diligence” requirement was crucial in that it shifted the burden of proof onto the importer. The problem, the writers of the 2021 assessment said, was that the “negligible” risk threshold was subjective. As such, authorities found it difficult to prove cases of rule-breaking, and were thus reluctant to pursue them.
To their credit, the drafters of the EU Deforestation Regulation have sought to address both of these problems. The new law formally defines “negligible risk” and includes a raft of measures meant to improve how EU countries enforce its rules. The Deforestation Regulation sets mandatory minimum numbers for the compliance checks officials in member states must carry out, gives specific guidance on what constitutes a sufficiently dissuasive penalty, and formalizes cooperation with customs authorities. It also includes detailed demands for what information the national bodies tasked with enforcing it need to collect, provide to Brussels and publish. Transgressors will now be named and shamed. And there is even a clause allowing NGOs to take the enforcement authorities to court for failing in their duties.
These improvements are welcome. But there is good reason to doubt whether, on their own, they will be enough to ensure a different outcome.
Improvements not enough
Plentiful cases – including many exposed by Earthsight – show EUTR’s problems run deeper than “inconsistent” application of the rules or unclear terminology. Perhaps the most clear-cut relates to Belarus, Europe’s last dictatorship.
Despite European Commission-commissioned studies recognizing Belarus as one of the EU’s biggest suppliers of high-risk wood, the country’s profitable timber and wood product exports to the bloc have grown 10-fold since EUTR took effect, courtesy of non-existent enforcement of the law and a bit of greenwash. But the really shocking scandal emerged more recently.
As a result of Belarus’s complicity in the brutal invasion of Ukraine, international auditing firms checking the legality of logging in Belarus withdrew from the country. European governments advised against any travel there. Faced with this new environment, in April 2022 the European Commission declared that it was now “impossible” for importers of wood from Belarus to prove compliance with the EUTR. European companies, it said, must cease trading such wood. Yet that simply has not happened. In the nine subsequent months (May 2022-Jan 2023), the EU’s own Customs data shows, EU countries imported €259.8 million of Belarusian wood furniture.
It gets worse. In November 2022, Earthsight’s report Rubber-stamping Repression revealed that these imports include products made using the forced labour of political prisoners, in facilities notorious for torture and brutal conditions. Some of the money paying for this furniture, we discovered, was also going into Belarus’s president’s private slush fund – a government agency that was until recently run by his right-hand man, who is under EU sanctions over the disappearances of political dissidents.
Earthsight named and shamed some of the European firms involved. Our findings were widely reported in the media, including in Germany’s influential news magazine Der Spiegel. We even sent our evidence to the relevant authorities in Europe. Despite all this, the blatantly illegal trade has since increased. EU trade records show over €10.3m of imports in January 2023, the last month for which data are available, up from €8.3m the month Earthsight’s report was published.
Such continued trade is happening in direct contravention of the EU guidance from April 2022. It is also hard to see how the improvements in the text of the new EUTR replacement legislation would prevent it. For such patently high-risk goods, the interpretation of ‘negligible’ is surely meaningless. Variations in enforcement across member states also clearly aren’t to blame. Eighteen different EU countries have reported continued imports. This includes countries with some of the strictest penalties and greatest numbers of compliance checks. Neither can the fault be placed at the door of the dubious certification schemes, since they have long since departed the country.
There are other damning examples, beyond Belarus.
Take the Central African Republic (CAR), a near-failed state where multiple armed rebel groups roam almost at will. European governments advise strongly against all travel in the country, citing the high risk to foreign nationals of kidnap. The CAR’s rainforests, part of the Congo Basin, are a well-known illegal logging hotspot. None of the logging companies active there are inspected by independent auditors or monitors, unlike in other Congo Basin countries. Surely, one might expect, this would force European buyers to steer clear. You would be wrong.
As Earthsight research published today reveals, EU imports of timber from CAR have risen dramatically since the EU Timber Regulation took effect – seemingly undisturbed by the resource-rich African nation’s violent instability. Worse, the largest suppliers of this timber are some of the most suspect logging firms in the country. One such company even stands accused of being linked to the Russian Wagner mercenary group, which has been at the forefront of fighting in eastern Ukraine. The Kremlin-aligned private army is under sweeping Western sanctions for human rights atrocities in multiple war-torn countries, including the CAR.
This trade too cannot be explained by the problems with EUTR that authorities have acknowledged, and are seeking to address. Something else is going on.
An absence of political will
The truth is that no amount of changes to the language of the law can overcome the biggest problem EUTR implementation has faced, which is a fundamental lack of political will.
The number of checks an authority conducts is meaningless if those checks are not conducted in a strict fashion. The new language on types and levels of penalties in the law is just guidance – no specific minimum penalties are mandatory on Member States. Stricter penalties, and the naming and shaming of those penalized, will also only improve things if companies are caught in the first place. Earthsight’s investigations show timber flooding into the EU that is so patently high-risk that EUTR’s legal definitions cannot explain inaction by regulators.
The sad truth is that the failure of EUTR is much simpler. From the start, governments in Europe haven’t taken it seriously. From the start, the mindset of those charged with implementing it has been wrong. Many of the staff of the relevant ‘competent authorities’ are trying their hardest. But they are operating in an impossible environment. They are given insufficient resources, discouraged from applying the most serious penalties, hamstrung by prosecutors and judges who fail to understand the seriousness of the issue at hand, and undermined by the failure of other parts of government to share information.
The implementation of the law is simply not treated with the seriousness it deserves. The crucial ‘due diligence’ requirements are treated as minor technical regulations. Tellingly, in the UK (an EU member for most of EUTR’s history), the responsibility for enforcing them was given to an agency responsible for checking the consistency of weights and measures.
Misunderstanding the problem
There has also been a persistent misunderstanding regarding the nature of the problem EUTR was meant to address – and it is a misunderstanding which threatens to also undermine the law’s replacement.
It is assumed that illegal wood is illicit – that it is sourced under cover of darkness from protected forests, and traded clandestinely by criminal groups. On this basis, officials assume that wood supplied by established logging firms is legit. As long as there is a license covering the production in the supplier country, ideally accompanied by some kind of assurance the goods come from where they say they do, then things are assumed to be OK. But the reality is entirely different.
Plentiful studies have proved that the vast majority of illegal logging, the vast majority of illegal deforestation for cattle and crops, and nearly all of the international trade in soy, beef, palm oil and cocoa is carried out by legally established companies. In almost all cases, such companies have some kind of documentation to support their claims to legality.
Such documents are not likely to be forgeries. Instead, they are being illegally issued by government officials in the countries concerned, or are legally issued but their terms then breached. Companies cut outside boundaries or in off-limits areas within their licensed zones. They fail to pay taxes. They pollute the environment. They fail to honor contractual commitments to local communities. Goods produced in this way are often laundered long before they are even harvested, and certainly before they reach international markets. Actual smuggling of these goods into Europe is unheard of.
The new law prohibits goods linked to legal deforestation too. But its parallel ban on illegally sourced goods is broader. It applies to a wider range of natural environments, including mixed woodlands and savannas. It applies to past wrongdoing, not only the most recent. And it requires compliance with laws meant to protect the rights of indigenous and local communities, as well as laws meant to protect nature. Especially in the first few years, the legality requirement of the new law will encompass a much larger proportion of the commodities in trade than the deforestation one does. It is crucial to helping leverage wider change, to underlying governance and policy in forest countries, and to exports to markets other than the EU. How it is interpreted and enforced will be hugely important.
We must steel ourselves for another fight
Getting this law meaningfully enforced could yet prove harder than getting it on the statute books. It is essential that those who supported its passing, including campaigning groups, politicians and funders, don’t rest on their laurels. Like a mountaineer reaching a high-altitude summit, we are all tired. But if today’s victory is to make any difference, we must steel ourselves for another fight.
Governments, not just companies, will need to be called out – loudly – when they fail to honor the new law. False technical solutions peddled by snake-oil salesmen will need to be exposed. The will of the people will need to be harnessed again. Petitions, letter-writing campaigns, and all forms of public campaigning used.
There can be no “wait and see” approach. With the clock ticking loudly towards runaway climate change, this law has to work right from the get-go to be meaningful.
After all, reaching a summit isn’t much of an achievement if you die on the way down.
See related coverage here at Mongabay:
EU deforestation tracking regulation sparks division among groups, producers
