Reordering the European ground – regrounding the European legal order?

Abstract

This contribution to the Symposium on Ecosystem Restoration and EU Law assesses the underground protection schemes suggested by the European Green Deal (EGD) for the European Union (EU). By addressing the overground bias that environmental laws and policies have traditionally suffered from, the analysis engages with the EU Soil Strategy for 2030, its ‘Mission “A Soil Deal for Europe”’, and the proposed 2023 Soil Monitoring Directive. The Article explores how and to what extent this agenda for the preservation and restoration of soils is legally reordering the European ground and, simultaneously, how and to what extent it is regrounding the European legal order.

1. Introduction

The European Green Deal (EGD) for the European Union (EU) captures a significant part of contemporary progressive ecological imagination. Its adoption in 2019 triggered a wide range of initiatives and policies aimed at climate action and carbon neutrality, just transitions, green financing and biodiversity protection, notably the preservation and restoration of ‘healthy ecosystems’. ¹ As a new ground of ecological action, the EGD emerges as a process of European legal reordering that envisions to reground the European project. As part of these policies, the EU Soil Strategy for 2030 was adopted in November 2021 to ‘reap the benefits of healthy soils for people, food, nature and climate’. ² The attention paid to ‘healthy soils’ might well reconfigure a distinct understanding of the European ground or ‘land’: not one in which a ‘European identity’ is ‘deeply rooted’ – as invoked by Josep Borrell referring to it as a ‘garden’ to be protected from an invasion of Europe’s Others living in a ‘jungle’ ³ – but one that reckons with the vitality of its soils upon which human and nonhuman life depends.

Arguably, a reckoning with the vitality of soils could contribute to an emerging form of ‘ecolaw’, which ‘does not refer to the limited domain of human law that governs life and the Earth, but rather to the unlimited domain of law that emerges from life and the Earth’. ⁴ From this perspective, rather than governing the soils as an object of environmental law, the agency, vitality and normativity of soils – its minerals, living organisms, organic and inorganic matter such as gas and water – become constitutive of law or legal normativity itself. This understanding reconfigures the modernist view of human subjects as strictly autonomous from nonhuman objects of law. ⁵ This reconfiguration would entail a shift from a modernist grounding of environmental law that treats soils as an object of governance detached from human existential living conditions, towards an ecological regrounding of the EU legal order by reattaching its citizens and institutions to the vitality of the soils upon whose quality their lives depend. How ecological predicaments are reconfiguring relations and redistributing agency between and across humans and nonhumans has largely been commented upon in the literature. ⁶ But with the EU Soil Strategy comes another – much less commented on – development, namely that so far, environmental laws and policies have largely suffered from an overground bias with little attention paid to the protection of undergrounds. As the Society for the Protection of Underground Networks (SPUN) puts it: ‘[o]ur map of the world is half-blank, omitting the underground networks that stitch ecosystems together and do the heavy-lifting of carbon sequestration’. ⁷ Indeed, soils have largely been treated as a ‘taken-for-granted, invisible infrastructure for modern cities, agriculture, and markets, as raw matter or a resource separate from society and emerging only as its residue’. ⁸

In this contribution to the Symposium, I explore how and to what extent the EU Soil Strategy, its ‘Mission “A Soil Deal for Europe”’, and the proposed 2023 Soil Monitoring Directive are tackling this overground bias by advocating for the protection of underground ecosystems through the preservation and restoration of soils. As the EU Soil Strategy puts it, its objective is to finally ‘grant [. . .] the same attention to soil inhabitants as we do for above-ground biodiversity’. ⁹ This objective aligns with the call voiced throughout the humanities to change the outlook to earthly conditions – if one wants to take contemporary ecological predicaments seriously – by shifting attention to the ‘critical zones’ that sustain life on Earth. ¹⁰ The main question that animates this Article is therefore the following: by legally reordering the European ground, are the EU Soil Strategy, its ‘Mission “A Soil Deal for Europe”’, and the proposed 2023 Soil Monitoring Directive also regrounding the European legal order? Are we, in other words, witnessing a shift from a pre-EGD legal order governing the ground as a base on which environmental issues take place, to a post-EGD legal order grounded in and emerging from metabolic relations between under- and overground ecosystem processes that are critical for the maintenance of liveable conditions? This question will be addressed in two steps. First, I examine how the EGD promises to re-order European environmental laws and policies through a holistic framework aimed at addressing the preservation and restoration of soils. Second, I explore how this agenda is falling short of its promises by reproducing structural limitations of soil governance anchored in a vision of soil monitoring based on procedural data accumulation on soil quality, rather than substantive and legally binding interventions aimed at regrounding EU citizens and institutions into the vitality of soils essential for biodiversity to thrive.

2. A legal reordering of the European Ground

The EGD for the EU and its citizens stresses the urgency to preserve and restore ‘healthy ecosystems’. ¹¹ Arguably, a reversal of priorities is taking place, with the EU moving away from prioritising the health of the economy and EU citizens, towards a prioritising of ecosystems’ health – or, in other words, a move away from a traditional understanding of ‘sustainable development’ towards an ‘ecological understanding of sustainability’ as the editor of this special issue Edoardo Chiti puts it. ¹² As Chiti further noted elsewhere: ‘[a]lthough the health of ecosystems is instrumental to the health and economic life of human beings, it is not economic growth and the market that should be sustainable, but ecosystems’ themselves’. ¹³ This paradigm shift also aligns with the ‘One Health’ approach, which invites EU agencies that have traditionally dealt with aspects of human, terrestrial and aquatic animal, plant and ecosystem health in silos, to recognise the entanglements between human, animal, plant and ecosystem health. ¹⁴ Accordingly, and to reflect this paradigm shift, the EU is undergoing a process of legislative reforms in areas such as biodiversity protection, food safety, land use, energy efficiency, renewable sources of energy and – most importantly for our purposes – soil conservation and reparation.

While various EU policies on water, waste, chemicals, industrial pollution prevention, nature protection, or pesticides have contributed to the protection of soils, there is as of today no explicit legal instrument – let alone a legally binding one – that is specifically devoted to the protection of soils. Aware of this regulatory black hole, back in 2002, the EU Commission issued its Communication ‘Towards a Thematic Strategy for Soil Protection’ aimed at overcoming this gap. ¹⁵ This led to a ‘Proposal for a Directive establishing a framework for the protection of soil and amending Directive 2004/35/EC’ in 2006. ¹⁶ The adoption of a Soil Protection Framework Directive, however, required majority vote and was rejected in the Environment Council in 2007 due to a blockage by Germany, France, the UK, the Netherlands, Austria and Italy, despite the European Parliament issuing a positive resolution agreeing on the need for a Soil Framework Directive. ¹⁷ Whereas soil protection gained momentum over the past decade – with the United Nations (UN) declaring 2015 ‘International Year of Soils’ ¹⁸ – evidence on soil degradation kept emerging during the almost 20 years that passed since the proposal for an EU Soil Framework Directive failed. ¹⁹ The EU Soil Strategy for 2030 adopted in 2021 took stock of this evidence and brought an ‘EU Soil Law’ back on the table of negotiation. ‘To reap the benefits of healthy soils for people, food, nature and climate’, the Commission held, ‘the EU needs a renewed Soil Strategy that sets out a framework and concrete measures for protecting, restoring and sustainably using soils’. ²⁰ Bearing the haunting trace of its initial failure, this ‘renewed strategy’ is embedded in a more ambitious and holistic ecological agenda.

As the EU Soil Strategy for 2030 reckons: ‘[t]oo few know that the thin layer that lies below our feet holds our future’. ²¹ Soils, and the multitude of organisms that live in it, are ‘what make life on land possible’. ²² ‘It takes thousands of years to produce a few centimetres of this magic carpet’, the EU Soil Strategy puts forward. ²³ Soils host more than 25 per cent of all biodiversity on the planet and are the foundation of the food chains nourishing all animals and sustaining overground biodiversity. This ‘fragile layer’ regulates all biogeochemical cycles essential for living organisms, including water, carbon, nitrogen, phosphorus and sulphur. ²⁴ ‘Yet’, the EU Soil Strategy deplores, ‘our soils are suffering’. ²⁵ It has indeed been estimated that 60 to 70 per cent of soils in the EU are ‘not healthy’. ²⁶ To address the transboundary impacts of soil degradation, the EU Soil Strategy announced that the Commission would draft a legislative proposal by 2023 ‘for good soil health to be achieved across the EU by 2050’. ²⁷ The mission is to equip the EU ‘with an adequate legal framework granting soil the same level of protection as water, marine environment and air’. ²⁸ A ‘Soil Mission’ was foreseen as a key instrument – funded by the Horizon Europe programme for research and innovation – for the implementation of this framework, by creating a ‘network of “living labs” (experiments and innovation in a laboratory on the ground) and “lighthouses” (places showcasing good practices)’ that would ‘test, demonstrate and deploy solutions for soil health’. ²⁹

In accordance with this objective, on 5 July 2023, the Commission adopted a 69-pages long proposal on a Soil Monitoring Directive, aiming to ‘address key soil threats in the EU, such as erosion, floods and landslides, loss of soil organic matter, salinisation, contamination, compaction, sealing, as well as loss of soil biodiversity’. ³⁰ Rather than suggesting concrete legislative steps to tackle soil degradation, the Soil Monitoring Directive ‘puts in place a solid and coherent soil monitoring framework for all soils across the EU, which will address the current gap of knowledge on soils’ and offer a ‘comprehensive and harmonized data on soil health from soil monitoring’. ³¹ To make the Soil Monitoring Directive operational, ‘soil health’ needs therefore to become measurable. Different from ‘soil quality’ – which focuses largely on chemical components and is mostly used to characterise the ‘status of soil to sustain crop productivity’ – ‘soil health’ is more holistic and is based on the recognition of ‘ecosystem services’ that soils provide. ³² As defined in the EU Soil Strategy, soils are therefore considered ‘healthy’ when they are ‘in good chemical, biological and physical condition, and thus able to continuously provide as many ecosystem services as possible’. ³³ The Soil Monitoring Directive further defines ‘ecosystem services’ as ‘indirect contributions of ecosystems to the economic, social, cultural and other benefits that people derive from those ecosystems’. ³⁴

Taken together, the EU Soil Strategy for 2030, its ‘Mission “A Soil Deal for Europe”’, and the proposed 2023 Soil Monitoring Directive are legally reordering the European ground. By envisioning a holistic, comprehensive and, eventually, legally binding instrument on soil preservation and restoration, it is the very ground – in the dual sense of the EU’s land and its soils, but also its existential raison d’être to ensure conditions of habitability in the EU and beyond – that is being legally re-ordered or ordered anew to ‘have all soils in healthy condition by 2050’. ³⁵ While this is the promised objective the Commission has set for itself, it remains to be seen whether and how it will ultimately be realised – an issue that depends on many variables, including the administrative implementation of future legislations. Yet how, and to what extent, is this legal reordering of the European ground, also regrounding the European legal order?

3. A regrounding of the European legal order?

The European ground is being legally reordered by raising attention to its underground life. Following an initial detachment of EU environmental law from its ground – by focusing mostly on the overground environment, yet treating it as an object of managerial governance rather than a complex multispecies entanglement of both living and non-living matter essential for any organism to remain alive – ‘healthy soils’ now appear as the ground on which human and nonhuman health depends. ³⁶ As the European Commissioner for Environment, Ocean, and Fisheries Virginijus Sinkevičius announced during the presentation of the soil law proposal on 5 July 2023: ‘[w]e are filling a major legal gap to bring soil – together with air, water and the marine environment – under an EU legal act’. ³⁷ If EU officials keep referring to the proposal as the new ‘European Soil Health Law’, its formal title as ‘Proposal for a Directive on Soil Monitoring and Resilience’ – in short: ‘Soil Monitoring Directive’ – indicates a shift in focus from substantive to procedural action, which has been deplored by many.

By way of illustration, the Green Member of the European Parliament (MEP) Martin Häusling pointed out how the proposal falls behind the initial ambition of giving soil a protected status similar to that of air or water. ‘The proposal that the Commission has presented today for a “Soil Monitoring Directive”’, Häusling complained, ‘has nothing to do with a “Soil Protection Law”, as was still announced by the Commission in its Soil Strategy’. ³⁸ The proposal, indeed, fell short of expectations by not including legally binding targets or requiring mandatory plans, and no obligation for Member States to take substantive actions for soil health. ³⁹ The contrast between the promises spelled out in the EU Soil Strategy and the result of the Soil Monitoring Directive are indeed striking.

The EU Soil Strategy was articulated in a sentimental register amplifying the ‘vital’ – even ‘magical’ – quality of soils. ⁴⁰ It set forth a ‘vision for soil’ aimed at re-grounding, re-attaching and re-connecting EU citizens and institutions to the soil, by ‘bring[ing] soil closer to people’s lives’ and ‘develop[ing] the concept of soil literacy with European citizens’. ⁴¹ It recognised how soils had so far been treated as ‘the most undervalued element of nature’, often perceived ‘just as “dirt” and as an unlimited natural resource’, deploring a ‘lack of emphasis in education of the importance of soil’. ⁴² A distinctive affective grammar was used to reground European citizens and institutions. This ‘vision for soil’ was pitched through a thought-experiment, time travelling to 2050 when soil protection ‘has become the norm’. ⁴³ The objectives were not set in the subjunctive form, but asserting in the present tense what will have been achieved in future: ‘[b]y 2050, all EU soil ecosystems are in healthy condition and are thus more resilient, which will require very decisive changes in this decade. By then, protection, sustainable use and restoration of soil has become the norm’. ⁴⁴ The EU Soil Strategy also entailed a noticeable shift from a territorial to a terrestrial understanding of the land, by foregrounding the materiality and agency of soils. A growing interest in non-static, vertical and volumetric qualities of ‘terrestrial’ space explores relational processes across new heights and depths, from the atmosphere to the subterranean. ⁴⁵ If a territorial thinking is limited to human affairs and politics – delineated by cartographic maps of territorial boundaries – a terrestrial thinking relates to ‘more-than-human’ and geo-political concerns, where human and nonhuman agencies are entangled in the (re)production of (un)liveable conditions on Earth. ⁴⁶ Indeed, the EU Soil Strategy recognised ‘soil healing’ as a ‘matter of survival’ beyond the human species: ‘soil and the multitude of organisms that live in it provide us with food, biomass and fibres, raw materials, regulate the water, carbon and nutrient cycles and make life on land possible’. ⁴⁷ The agency of soil organisms and their relational processes were posited as essential for biodiversity and biogeochemical cycles. This approach aligns with and speaks to contemporary re-conceptualisations of soil and its manifold entanglements with plants, fungi, bacteria and other forms of life as ‘matters of care’ and sites of ‘material politics’ – a ‘belowground three-dimensional living world’ that so far remained elusive in social theory, including law. ⁴⁸

The Soil Monitoring Directive, in contrast, is framed in an overall highly technocratic, technoscientific and managerial vocabulary. Soil descriptions, indicators and management practices are foregrounded, with strategies and objectives for soil use, preservation and restoration falling into the background. While it recognises the ‘central factor’ of ‘sustainable management and action to regenerate soils’ to boost soil health, it includes no obligations to take action beyond monitoring soil health. ⁴⁹ The focus lies on closely monitoring and mapping both the ‘quality’ and the ‘health’ of soils, to highlight the location and estimate the extent of soil degradation in the EU. ⁵⁰ As mentioned above, the prevailing parlance of soils as ‘ecosystem services’ channels attention to the economic, social and cultural contributions and benefits that people derive from soils. ⁵¹ This angle of analysis enacts a particular way of valuing soils for human purposes, which rests on notions of use-value (the non-monetary value derived from humans’ use of soils) and exchange-value (the monetary value ascribed to soils and their ecosystem services). ⁵² Indeed, whereas invocations of the ability of soils to ‘produce food, increase our resilience to climate change, to extreme weather events, drought and floods and support our well-being’ refer to the use-value of soils, ⁵³ the calculation of costs of soil degradation resulting from the loss of ecosystem services refers to their exchange-value. For instance, the Soil Monitoring Directive evaluated that ‘[t]he benefits of the initiative [on the implementation of measures for sustainable soil management and regeneration] were estimated at around EUR 74 billion per year’. ⁵⁴ This economic calculus serves to incentivise stakeholders to protect and restore soils, not for the sake of ‘healthy soils’ as such, but of financial profitability in light of a cost-benefit analysis. Soils are here conducive for profits of an economic nature.

But mapping – and cartography more generally – have never been neutral instruments or tools of description of space. Soil mapping promotes particular conceptions of lands, making them amenable to specific projects of governance. As with any kind of knowledge enterprise, Kon Kam King and Granjou note, ‘soil mapping relies on a range of material and social “inscriptions” (Latour) and “infrastructures” (Star), including soil maps and nomenclatures, soil samplings, measurement and analysis guidelines and tools, soil data and databases, and research institutions and organisations funding and fostering soil mapping’. ⁵⁵ This understanding of what ‘soils’ are (and who ‘soil experts’ are) determines also what type of soil knowledge matters. ⁵⁶ The re-approval on 16 November 2023 by the EU Commission to keep using the controversial herbicide glyphosate – a chemical developed in the 1970s under the brand-name ‘Roundup’ by the US company Monsanto, acquired by the German agrochemical company Bayer in 2018 – offers a timely example of such politics of expertise. Indeed, amid myriad studies showing how glyphosate is both carcinogenic and harmful to biodiversity, the EU Commission prioritised the economic interests of the farm sector by extending the sell and use of this chemical in the EU for another 10 years. ⁵⁷ In doing so, it failed to recognise the complex ways in which glyphosate disrupts the soils and their productivity as much as human bodies and their reproductivity. ⁵⁸ Evidently, there is no guarantee that more soil monitoring will ensure better soil preservation and restoration as long as competing interests between socio-ecological and financial concerns are not addressed politically. As it stands, the increasing recourse to soil monitoring and expertise risks amplifying the technoscientific ‘big-data vision’ and associated belief that producing ever-more environmental data is the best option to manage the environmental crisis. ⁵⁹

Overall, with the Soil Monitoring Directive, soils emerge as a new mandatory layer in environmental monitoring, mapping and modelling – with the subsurface of the globe now rendered legible, visible and manageable. It remains, however, unclear as to how soils will be ‘brought closer to people’s lives’ and EU citizens turned into ‘soil literates’, as promised in the EU Soil Strategy. ⁶⁰ It is, arguably, precisely ‘people’s lives’ that remain absent from the Soil Monitoring Directive. The ‘people’ listed in the Soil Monitoring Directive are essentially ‘public authorities and stakeholders in agriculture, forestry and industrial sectors’, and notably ‘farmers, foresters, land owners and local authorities’. ⁶¹ While the EU Soil Strategy and Soil Monitoring Directive target different publics, both instruments disregard the agroecological collectives who today are actively cultivating distinct relations to the soils – communities who are ‘developing relational and reciprocal approaches with their habitats to be conscious of and, more importantly, minimize and close the extractive supply-webs by rehabilitating ecosystems’. ⁶² Whereas the Soil Monitoring Directive mentions its protection granted to ‘socially and economically disadvantaged communities living on or close to contaminated sites’ by ‘ensur[ing] that soil contamination is reduced to levels no longer considered harmful to human health and the environment’, ⁶³ it silences and invisibilises the collectives that are already actively working at resisting and reversing soil contamination today – be it through ZADs (zones à défendre) or re-generative collective actions of ecological soil reparation. ⁶⁴

There is, therefore, a paradox in recognising soils as vital for human and ecological health more broadly – thereby echoing a framing typical of Anthropocenic narratives, where it is humanity as a whole and its imprint in ecological conditions that is selected as scale of engagement – and yet focusing only on a limited number of stakeholders when it comes to actual interlocutors: technocratic policy-makers, farmers, land-owners, and the like. This mismatch between the promise of the EU Soil Strategy to re-ground EU citizens and institutions through soil attentiveness and literacy, and the actual disconnection between the Soil Monitoring Directive and people’s lives, points to a lack of inclusion in terms of regulatory arrangements characteristic of a modernist grounding of environmental governance of soils, rather than an ecological reconfiguration of human-soils relations.

Taken together, these shortcomings show how the legal reordering of the European ground through the adoption of the EU Soil Strategy for 2030, its ‘Mission “A Soil Deal for Europe”’, and the proposed 2023 Soil Monitoring Directive, are currently far from regrounding the European legal order by reattaching EU citizens and institutions to the ecological conditions they are entangled with.

4. Conclusion

Soils are ‘the most undervalued element of nature’, often seen ‘just as “dirt” and as an unlimited natural resource’, the EU Soil Strategy for 2030 deplored. ⁶⁵ In the social sciences and legal literature specifically, soils – as opposed to land, territory, or the environment more broadly – attracted little attention to date. ⁶⁶ In contrast to the burgeoning literature on water, biodiversity or forest protection, a gap on ‘soil literacy’ in EU environmental law contributed to an overground bias in the field, to the detriment of underground life. The relative obscurity of soils in academic and public discourses stemmed both from a literal ‘invisibility’ of subterranean life – now overcome through promises of soil monitoring, mapping and modelling – but also from their often-overlooked role as the foundational material ‘infrastructure of social life’, ⁶⁷ or what Puig de la Bellacasa calls ‘bioinfrastructure’. ⁶⁸

A shift of attention to soils’ essential role for biodiversity is now emerging and has reached the negotiation table of EU lawmakers. In the poetic words of the EU Soil Strategy, we read: ‘[b]eneath our fields and our feet, an eclectic community of soil organisms toil day and night in a remarkable, coordinated effort that sustains life on Earth’. ⁶⁹ Whereas the text of the EU Soil Strategy adopted in November 2021 was remarkable in its framing or grounding in a relational understanding of ‘soil-as-living’ ⁷⁰ – by recognising soils as a relational metabolic process formed by and through human and nonhuman intra-actions – the outcome reached in July 2023 with the proposal of the Soil Monitoring Directive disappointed many. While acknowledging the vital or ‘critical’ role of soil, the instrument reinscribes an understanding of it as a ‘governable, ownable, and controllable’ element. ⁷¹ This technoscientific and technocratic understanding is embedded in an ‘eco-constructivist rationale’ that believes in humans’ ability to re-construct the environment, mend the ‘metabolic rift’ between humans and nature, and pilot the Earth away from socio-ecological disasters. ⁷² Soils, from this perspective, become the ‘new frontier’ for eco-modernist intervention and ultimate salvation – principally by reversing climate change through soil carbon sequestration. At the core of this redemptive claim lies a depiction of soil carbon sequestration, regenerative land-management practices, and negative-emission technologies as ‘possessing an almost mystical power to “reverse climate change”’. ⁷³ As I argued in this Article, this eco-modernist approach that underpins the Soil Monitoring Directive drives attention away from distinctive human-soil relations premised on care, as already practiced today by many agroecological collectives. Soil care is here understood as a ‘concrete work of maintenance, with ethical and affective implications, and as a vital politics in interdependent worlds’. ⁷⁴ These three dimensions – of labor/work, affect/affections, and ethics/politics – of care, turn care into a ‘force distributed across a multiplicity of agencies and materials [that] supports our worlds as a thick mesh of relational obligations’. ⁷⁵ It is in such material practices and sensibilities that attention should be driven to ‘bring soil closer to people’s lives’ and ‘develop the concept of soil literacy with European citizens’, as initially envisioned by the EU Soil Strategy for 2030. ⁷⁶

Until then, the increased attention to soils thanks to the EU Soil Strategy for 2030, its ‘Mission “A Soil Deal for Europe”’, and the proposed 2023 Soil Monitoring Directive might well legally re-order the European ground, but a distinct mode of relating, knowing and engaging with soils will be needed to re-ground the European legal order. Only then, and to come back to Puig de la Bellacasa – with whom my interest in soils began – will ‘[c]hanges in ways of knowing involve changes in ways of living that may well transform the object of knowing itself, in our case, Earth’s soil, from object to kin’. ⁷⁷ As it stands, while legal actions are taken to preserve and restore soils in the EU, the path adopted with the Soil Monitoring Directive leaves little space to re-build a common ground and repair the metabolic rifts between humans and soils.