The national resilience and recovery plans and the environmental rule of law

The rule of law, one of the fundamental values of our European Union, has been a key aspect in the negotiations for the Multiannual Financial Framework and the Recovery Facility, the main instrument of Next Generation EU whose Regulation entered into force on 19 February 2021. Regulation on a general regime of conditionality for the protection of the EU budget which aims to protect the rule of law was adopted last January to avoid the use of European funds by Member States violating the rule of law. Both financial instruments emphasize the need to avoid corruption, fraud and conflict of interests when executing both financial instruments as part of the rule of law.

Rule of law implies that all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, among other aspects. Therefore, the rule of law is not only about avoiding corruption, fraud and conflict of interest but it also covers respect to the EU environmental acquis (environmental Directives and Regulations) adopted since the 60’s of the XX^th century. This means that environmental rule of law has to be part of the Facility and of the National Recovery and Resilience Plans that Member States are preparing as well as of the assessment of those plans that European Commission has to undertake before being approved by the Council.

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Among the legal obligations that those national plans have to respect are:

1. Transparency and public participation. Transparency implies disseminating and/or facilitating information. In addition, one of the elements to include in those national plans are a summary of the consultation process conducted in accordance with the national legal framework, of local and regional authorities, social partners, civil society organizations and other relevant stakeholders for the preparation of the plan. According to the Aarhus Convention (on access to information, public participation and access to justice in environmental matters) to which the EU and its Members States are Parties of, this consultation has to take place when all options are open and effective public participation can take place. National legal frameworks have to be in line with the Aarhus Convention which requires public participation for "any plan, programme or policy relating to the environment." In particular, under this Convention a plan, programme or policy may be considered as "relating to the environment" regardless of whether it "sets the framework" for a development consent for any project or not", and "(…) Nor does it exclude financial or budget plans and programmes". However, not much information on the plans is being disseminated and public participation as required by that Convention is not taking place in Member States.

2. National plans have to be subject to a strategic environmental assessment in line with the EU Directive on such a matter as. This is because national plans are plans:
   1. co-financed by the EU,
   2. being prepared by national authorities and that will be required by an EU Regulation,
   3. prepared for and cover areas such as energy, telecommunications and tourism, among others and which set the framework for future development consent of projects subject to environmental impact assessment.

However, as occurred with the firsts National Energy and Climate Plans under EU Regulation on the Governance of the Energy Union and Climate Action, again an EU legal text do not require to subject plans to strategic environmental assessment.

3. Subject to environmental impact assessment those projects obtaining funds from the RRF when required by the EU legislation. However, a piece of legislation adopted in Spain to execute the future National Recovery, Transformation and Resilience includes a provision excluding certain projects in block from EIA.

In spite of these requirements under EU environmental rule of law, the preparation of National Recovery and Resilience Plans is not being subject to strategic environmental assessments and public consultation procedures are being poor or absent and not in line with the Aarhus Convention requirements. The do not significant harm principle enshrined in the so-called Taxonomy Regulation and which under the Recovery and Resilience Facility requires an explanation of how the national plans ensure that no measure for the implementation of reforms and investments included in the plan makes a significant harm to environmental objectives is not enough and nor a substitute of other environmental protection legislation.

Economic responses to Covid-19 are essential and necessary, but these cannot be at the expense environment rule of law and more when national recovery and resilience plans are meant to contribute to the EU Green Deal.

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