Coronavirus and Climate Change Crises Under EU Law | Max Planck Institute Luxembourg for Procedural Law

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INSIGHT by Alessandra Donati a Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law  | The Insight was first published on blogdroiteuropéen.

One or two crises?

| “An absent dog does not bark, says an African proverb. The press has hardly been absent during the coronavirus outbreak; many outlets have run stories about little else. But the focus on the virus has distracted the press from its watchdog function on other matters of public importance, including the climate crisis”. The same conclusion can be reached at the political level: the spreading of Covid-19 seems to have taken away EU decision-makers from pursuing the roadmap aimed at tackling the climate emergency. Yet, not only climate change has disappeared from the media and political discourse, but also some of the milestones of the fight against climate change may be undermined due to the coronavirus outbreak. As an example, polypropylene masks, hydro-alcoholic gel flasks, plastic-packaged food, and other single-use plastic products yesterday pointed at by zero-waste advocates and European regulators are now being ripped off. Polymers, 99% of which is produced from oil, gas or coal, are now spreading along with coronavirus. A strong comeback that the plastic industry intends to exploit by promoting the slogan that plastic bags save lives and that plastic bags would be the ultimate guarantee of hygiene, unlike reusable cloth bags, which are accused of being nests for viruses. This is despite the fact that scientific studies agree that plastic is, along with steel, the surface on which the coronavirus is most stable. In this context, the lobby of European plastics companies, in a letter to the EU Commission on 8 April, called on the Commission to postpone for at least one year the implementation of the Single-Use Plastics Directive at the national level and to lift all ban already in place on such products. At the same time, the Italian government is evaluating a suspension of the plastic tax of 45 euro cents per kilo, which was due to come into force in July 2020.

As this contribution will demonstrate, despite the tendency (or the willingness?) to focus on the coronavirus crisis and to neglect the climate crisis, these two crises are intertwined. They shall be tackled through a common, coordinated, and consistent EU risk management strategy. Indeed, coronavirus and climate change are not two different crises, but they represent two sides of the same significant turmoil relating to the progressive degradation of our environmental and health ecosystems.


Some interactions between climate change and coronavirus

 | Degradation of the natural environment and Covid-19

People generally think that viruses have always existed, that epidemics have nothing to do with the state of biodiversity or climate change. Yet in recent decades, they have been on the rise. According to the World Health Organization (WHO), 60% of new human infectious diseases are of zoonotic origin, i.e., they are transmitted by animals: Rift Valley Fever, SARS, H1N1, yellow fever, avian influenza H5N1, H7N9, MERS-CoV, and now very likely Covid-19. Even if its origin is still uncertain, a number of virological, epidemiological, and ethnographic arguments suggest that coronavirus has a zoonotic origin. The pangolin, a species threatened with extinction, is now suspected of having facilitated the transmission to humans of a virus that probably originated in a species of bat. Human predation “of wild fauna and the reduction in habitats have thus ended up creating new interfaces that allows the passage of pathogens, mainly viruses, to humans”. The emergence of these infectious diseases is, therefore, a consequence of our growing grip on the natural environment. We are deforesting, bringing wild animals hunted from their natural habitat into contact with domestic livestock in unbalanced ecosystems close to urban areas. In this way, we are offering infectious agents new chains of transmission that benefit from the vast network of diffusion opened up by the interconnections between their potential hosts, the humans. As it was clearly stated by some scientists, there is no doubt that by destroying biodiversity and deforesting, we are in the process of unearthing powerful monsters, of opening a Pandora’s box which has always existed, but which now lets out a fluid of even larger microorganisms.


| Air pollution and Covid-19

The connections between air pollution and coronavirus are double. On the one hand, some studies show that coronavirus causes a higher death toll among patients in areas – like in the north of Italy – with slightly increased levels of a particularly dangerous form of air pollution. Namely, a study from Harvard University links an increase in fine particle exposure levels of just one microgram per cubic meter of air with a 15% higher death rate from Covid-19. On the other hand, a sharp reduction in the concentration of nitrogen dioxide – a pollutant mainly emitted by road transport – produced as a result of road traffic and other fossil fuel combustion processes can be seen in Northern Italy, coinciding with the lockdown for coronavirus causing less traffic and industrial activities. Data from the European Environmental Agency confirms this trend by stating that also in other EU member states concentrations of nitrogen dioxide have significantly decreased where lockdown measures have been implemented. These data confirm the direct relations between human activities and climate change and suggest that the continuous degradation of the environment is not neutral for humans, but is an aggravating phenomenon that, in a context of future predictable pandemics, will play a major role by increasing the burden of our environmental and health damages.


The need for a common, coordinated and consistent EU risk management strategy

| In his work concerning times of plague between the 14th and the 18th centuries, the historian Jean Delumeau observes this constant behaviour: when the danger of contagion appears, we first try not to see it. The German writer Heinrich Heine notes that after the official announcement of the cholera epidemic in Paris in 1832, Parisians wiggled with all the more joy on the boulevards because the sun was shining and the weather was charming. Then, suddenly, Delumeau explains, the familiar frameworks are abolished. Insecurity arises not only from the presence of the disease, but also from the destruction of the elements that built the daily environment. Everything is different.

The reactions to climate change and Covid-19 crises were not different. Even if the enormous dangers linked to climate change are known since the 1970’, the actions taken to fight what can be considered as “the most urgent story of our time”, have failed until now to address this risk. Likewise, even if the emergence of zoonotic pandemics was predictable and the outbreak of Covid-19 in China in January 2020 should have alerted EU Member states as to the risks of a fast and wide contagion, they were unprepared to manage such crises and waited to take protective measures until the spreading of coronavirus was already significant in their territories thus exacerbating the consequences (both sanitary and economics) of the pandemics.

Against this backdrop and in light, not only, of the cyclical time of pandemics – according to the WHO, pandemics may cause several waves of severe epidemics after the first outbreak – but also of the on-going fast worsening of the climate crisis, what shall EU law do to manage such risks?


| A common risk-management strategy

First of all, EU institutions and Member states should implement a common risk-management strategy that encompasses both climate change and pandemics. The existence of a strict connection between health and environmental risks is not new. Article 191 § 1 TFUE provides that the protection of human health is an objective of the EU environmental policy. This means that when taking actions to preserve the environment, decision-makers must also ensure that human health is protected. Moreover, under the 7th Action Program for the environment covering the horizon 2013-2020 is clearly stated that environmental problems and impacts continue to pose significant risks for human health (whereas 25) and that the goal of the EU action is to safeguard the Union’s citizens from environment-related pressures and risks to health and well-being (Article 2). If the connections between environmental and human health risks are recognized, what about the interrelations between environmental risks and risks to animals and plant health that, in turn, can significantly affect human health? As the Covid-19 crisis shows, most of the pandemics have a zoonotic origin, and the loss of biodiversity, as well as the strong human footprint on the environment, have made more likely the transmission of pathogens from plants and animals to humans. In this context, a new understanding and regulation of the connections between environmental risks, from one hand, and plant, animal and human health risks, on the other hand, should be undertaken.

Furthermore, as the climate and coronavirus crises demonstrate, environmental and health risks can trigger significant social, economic and political risks. From this perspective, the management of such crises requires the adoption of a holistic and interdisciplinary approach that shall enable EU decision-makers to tackle in a transversal way both the environmental and health dimensions of such risks and their consequences on the social, economic and political level. This means, in particular, that the definition and implementation of environmental and health objectives and requirements cannot be separated from the setting up of the political, social, and economic roadmap that shall guide the EU in the next months and years. Therefore, the ultimate goal of the EU Green Deal should be to link the achievements of economic objectives with the management of health and environmental risks caused by climate change and the new predictable waves of pandemics, while mitigating the social impacts of the protective measures to be taken.


| A coordinated risk-management strategy

Second, EU institutions and Member states should implement a coordinated risk-management strategy. The on-going climate and health crisis show the intense degree of interdependence achieved by our societies as a result of globalization, where not only the production, transportation, and consumption chain is extended, but also the risks are global. In such a scenario, there is a need to enhance better the coordination of risk strategy by combining a timely national and EU management. This is even more necessary as the EU competences in the field of health and environment are limited. In the field of public health, under Articles 6 and 168 TFEU, the Union’s competence is limited to taking action to support, coordinate or supplement the work of the Member States to prevent the spread of diseases and health threats of a cross-border nature. Competence in public health matters, therefore, remains primarily at the national level. As to the environment, under Articles 4 and 191 TFUE, the Union disposes of a stronger competence than in the field of health, but the competence is still shared with the Member states, which remain key players in the protection of the environment.


| A consistent risk-management strategy

A consistent risk-management strategy should take into account the need to anticipate the occurrence of risks by applying the precautionary principle and should foster the adoption of a new approach to nature and economic development.


The application of the precautionary principle

As recently affirmed by the German philosopher Habermas, “il nous faut agir dans le savoir explicite de notre non-savoir (we must act in the explicit knowledge of our non-knowledge). This statement translates the idea that the solution of both the climate and coronavirus crises requires a “transition to the era of precaution”. To face climate change and pandemics, it is necessary to prevent as much as possible their occurrence by anticipating the time of action on the basis of the precautionary principle. This principle, laid down in Article 191 § 2 TFEU and taken over by a multitude of directives and regulations, can be defined as a principle of anticipated action which, in a context of risk and uncertainty for the environment and public health, requires the competent authorities to take protective measures without waiting for certain scientific proof of the existence and extent of the risk in question. As both the climate and coronavirus are showing, if the precautionary principle is not timely applied and no preventive measures are adopted, it will be too late to act when the risk materializes. In this scenario, the decision-makers will be bound to act in a context of an emergency, where there will be no longer a need to prevent the occurrence of risk (which has already occurred) but only to mitigate (as much as possible) its effects. Yet, if EU decision-makers are already struggling to mitigate the health and economic consequences of Covid-19, what will happen when the risk at stake is severe flooding, droughts, rise in temperature, and in the level of the sea as a consequence of climate change?


A new approach to nature and economic development

The implementation of a consistent risk-management strategy requires re-thinking our relationship to nature. Similar pandemics and even more severe climate change events will occur in a new future if the logic of current interactions between human populations and nature is not fundamentally challenged. Humans are omnivores that have become super-predators, degrading the equivalent of half of the European Union’s arable land every year. To fight epidemics and climate change, the necessary changes are at the level of civilization.

As in the symbolism of yin and yang, we must accept the dual nature of what surrounds us. We need to completely reconsider our relationship with the living world, natural ecosystems and their biological diversity, which are both the guarantors of great balances and the source of many dangers. From this perspective, a resolution of the UN General Assembly suggested incorporating in our legal systems the right to live in harmony with nature. This concept epitomizes the need for an epistemological shift in our relationship to nature, moving from a human-centered to an Earth-centered approach, which should ensure that human governance systems are consistent with natural systems. Another proposal worthy of consideration is the inclusion by Ecuador and Bolivia of references to the rights of nature in their constitutional texts. In Ecuador, nature is recognized as a legal entity. All persons, communities, peoples, and nations can call upon public author­ities to enforce the rights of nature. In Bolivia, nature has not been recognized as a legal entity, however, the concept of harmony with nature is embedded in the Constitution, and it is considered as an ethical and moral principle to which the State adheres.

The adoption of a new approach to nature shall go alongside with the re-thinking of our model of economic development. The coronavirus and climate change crises are existential events for humanity that should bring us to reconsider the extent and the model of globalization to reconcile better the national with the international dimension and thus being able to prevent and manager more efficiently the risks (environmental, health, social, political and economic) triggered by globalization. Instead of using Covid-19 economic incentives to support the status quo we should invest in the new economy in order to emerge from the crisis in a better shape than we entered it, ready for the future: sustainable, inclusive, competitive, and prepared.


| Conclusion

Over the centuries, pandemics have always laid down markers between different eras of human society. We must not wait to see if this new health crisis will open the door to the building of a new society, eventually ready to achieve the objective of the UN Sustainable Development Goals: peace and prosperity for people and the planet, now and into the future. The next pandemics are highly predictable; the effects of climate change are already visible and will increase in the upcoming years; it is the time not only to “think the unthinkable” but also to take the risk to say and to do something different. It is, in other words, the time – now or never – for anticipating the predictable, but still uncertain consequences of climate change and pandemics by adopting, for the benefit of present and future generations, a common, coordinated and consistent EU risk management strategy that will foster a new approach to nature and a new vision of economic development.


| about 

Alessandra Donati is a Senior Research Fellow at the Max Planck Institute for Procedural law in Luxembourg. She obtained her PHD at the University Paris 1 Panthéon Sorbonne with a thesis on the precautionary principle under EU law. Alessandra holds a degree in law from the Università Commerciale Luigi Bocconi (Milan) and in economics from the Università Politecnica delle Marche (Ancona). She also holds an LL.M. in French and European Law from the University Paris 1- Panthéon Sorbonne. Alessandra is a member of both the Italian (Milan) and French (Paris) Bar Association. Before joining the Max Planck Institute as a research fellow, Alessandra practiced law for several years as an attorney in Milan at Chiomenti Studio Legale and in Paris at Castaldi Partners law office. Alessandra is currently teaching at SciencesPo (campus of Nancy) and at the University of Luxembourg. She specializes in European Union law, and namely in EU environmental and food law.