Forest Fires in Mediterranean Europe: Building Up to the Courts?
X. Farre Fabregat (BSoG-Vrije Universiteit Brussel) – A. Savaresi (U.of Eastern Finland)– I. Otero (U. of Laussane) -J. Teixeira de Freitas (BSoG- Vrije Universiteit Brussel).
This blog post builds on the webinar Forest Fires in Mediterranean Europe: Building Up to the Courts?. It presents a multidisciplinary perspective on how the political ecology of stakeholders’ actions, EU climate policy and litigation have had an impact on the governance of forest fires in Mediterranean Europe. It was organised by the ERC Curiae Virides Project at the Brussels School of Governance (Vrije Universiteit Brussel).
Mediterranean Europe was the area most affected by forest fires in Europe in 2020, particularly in Spain and Portugal. Despite the inherent danger that this entails, the last decade (2010-2019) presented nonetheless a considerable decrease of burnt hectares compared to the previous three decades (page 115). Notwithstanding this reduction in fires in most countries, various concerns about the frequency and effects of forest fires derive from the increase in fire weather – i.e. daily to seasonal weather conditions conducive to fires. The novelty in the last decades in the Mediterranean basin is the appearance of (more) large wildfires while the total surface burnt has diminished. Climate litigants increasingly link forest fires with rising temperatures and argue that they do not occur in a vacuum. Some issues are of relevance here to understand this phenomenon. These include, firstly, wildfire policies and management; secondly, the influence of the European Union (EU) climate change policy; and, thirdly, the political ecology context created by the interactions of stakeholders.
The concept of Mediterranean Europe refers thereby to European countries that share a similar climate – with hot dry summers and humid winters – and that have a similar but differentiated wildlife and landscape. Their forests can host up to 200 tree species, compared to merely a dozen species characteristic of Central and Northern European forests. Mediterranean Europe includes regions from France, Portugal, Italy and Spain, and the whole territory of Greece, Malta and Cyprus. These countries nowadays also share patterns of continued rural-to-urban migration, leaving former cultivated areas at the mercy of nature and widening the geographical extension of possible fires. Due to this urbanization trend, the wildland-urban interface – that is, the zone where wildland vegetation intermingles with human settlements – has also expanded. This facilitates extreme fires reaching human dwellings with dramatic consequences.
Image obtained, and edited, from “GWIS – Global Wildfire Information System. Current Situation Viewer” (European Commission). Accessed on 23March 2022, https://gwis.jrc.ec.europa.eu/apps/gwis_current_situation/index.html
Regarding the first issue, wildfire management policy in Mediterranean European countries converges around reactive fire suppression – mainly fire-fighting – rather than around fire prevention. Policy effectiveness is, therefore, primarily measured in terms of the burnt area instead of socio-ecological damages. Historically, Mediterranean Europe has disregarded the forest sector compared to Nordic and Eastern countries and it is representative of a declining forest industry.
Regarding the second issue, the Paris Agreement adopted under the United Nations Framework Convention on Climate Change (the Paris Agreement) and the EU Land Use, Land Change and Forestry (LULUCF) Regulation crucially inform the EU’s legal framework on forests. The net zero emissions approach embedded in the Paris Agreement requires the EU to reconsider the role of forests in absorbing greenhouse gas (GHG) emissions. Thereby, the EU LULUCF Regulation enables for the first time the forestry sector to contribute to the achievement of EU’s 2030 emission reduction target. The EU LULUCF Regulation covers a variety of emission sources and involves several economic activities connected with the management of soils and land uses. It also requires member states to report their emissions more accurately. Furthermore, member states are required to compensate for emissions released – e.g. because of fire or soil disturbances – in line with the no-debit rule.
The implementation of the EU LULUCF Regulation has however raised some concerns. It has a policy impact on the use of biomass in the EU, which employs the organic material arising from living ecosystems, including forests, as a source of energy. The EU Renewable Energy Directive (RED) also promotes the use of forest biomass. Currently, a considerable part of the renewable energy in Europe is being produced by burning biomass, which raises several ecological integrity questions. This tension has prompted a debate over the planned amendments of the EU LULUCF Regulation and the EU RED under the European Green Deal, a package of policy and legislative initiatives aiming at reaching climate neutrality by 2050. The reform of the EU LULUCF Regulation will likely increase the contribution of the forestry sector to the achievement of EU’s revised 2030 climate mitigation targets. European forests are therefore simultaneously expected to expand – thus maintaining and enhancing EU’s carbon sink – and to deliver forest biomass to address the increased demand for renewable energy generation. The tension between these policy objectives and concerns over the robustness of extant rules add to the unease over the ecological integrity of EU policy in this sector.
Regarding the third issue, stakeholders hold alternative visions regarding fire policies. This influences the (lack of) management of the environmental problems surrounding fires and has an indirect effect on how fires are used in litigation.
A case study of Catalonia (Spain) illustrates the political ecology around fires in the region. The case focuses on the change brought about by a special unit of wildfire experts created within the fire department of Catalonia, the Grup de Recolzament d’Actuacions Forestals (GRAF), and its interactions with other stakeholders. The Catalan government, with competences in the area of fire prevention and suppression, created the GRAF in 1988 to bring in new knowledge (such as wildfire analysis) and new techniques (such as suppression fire). It was a reaction to a forest fire in central Catalonia which surpassed the fire department capacity and burnt about 27.000 ha, showing that the changes implemented by the authorities after similar large fires in 1986 and 1994 had not been enough. Its establishment triggered three conflicts that uncover the underlying political ecology of forest fires.
First, the integration of GRAF within the fire department provoked an internal reorganization that led to some tensions with trade unions and firefighters, who rejected the fact that outsider forest engineers could decide on how to fight wildfires. Second, GRAF‘s central aim was to reduce the potential intensity of fires through the creation of strategic management areas that would slow down fire spread and provide opportunities for suppression, with the assumption that fires would happen anyway. This was a radical change of paradigm strongly opposed by the Barcelona province authority, which established a special office of wildfire prevention that based its prevention schemes on fire avoidance using a network of water infrastructure and forest tracks. Third, a conflict arose with some forest owners complaining about the dismissal of their local knowledge which they deemed relevant to integrate into fire policies. This tension was clear in the 2003 fire in Sant Llorenç, when GRAF used its methods in full force for the first time. Although GRAF managed to reduce the spread of the fire from the potentially 30.000 estimated ha to about 4.500 ha actually burnt, the practice of suppressing fire caused friction among some forest owners who argued that GRAF’s fire had burnt their property.
Within this context, a new phenomenon emerges. Strategic litigation is progressively taking place, grounded on international and EU law and policies, and is linked to the occurrence of actual forest fires, or on the use of forest biomass as a source of renewable energy.
Two complaints have been dismissed on admissibility grounds by the Court of Justice of the EU (CJEU). The first complaint challenged the treatment of forest biomass as a renewable source of energy (Peter Sabo and Others v European Parliament and Council of the EU, better known as the EU Biomass case). The second complaint challenged EU Directive 2018/410, EU Regulation 2018/842 and EU Regulation 2018/841 (Armando Carvalho and Others v European Parliament and Council of the EU, also known as The People’s Climate Case), arguing that these regulations lacked ambition to reduce GHG emissions.
In a pending complaint before the European Court of Human Rights (ECtHR), a group of applicants (mostly children) (Duarte Agostinho and Others v. Portugal and Others) listed forest fires among the climate change-induced phenomena negatively affecting the enjoyment of their human rights – specifically the right to life and the right to private and family life.
Beyond the European borders, 16 children lodged a complaint before the United Nations Committee on the Rights of the Child (Sacchi et al v. Argentina et al.), which also linked forest fires with climate change. The applicants claimed, firstly, that fires disproportionately harm children (para. 90) as they are more frequent and intense (para. 6) and, secondly, that fires provoke globally the death of 260.000 to 600.000 people (para. 106).
These cases show how claims seeking to protect the environment are increasingly framed in human rights terms and, particularly, how forest fires are considered a clear effect of climate change. Moreover, the private ownership of forests in Europe also appears in the legal argumentation dealing with fires in so far as proprietary rights are used to complain about the effects of certain (concrete) fire policies. In the above-mentioned fire of Sant Llorenç, two forest owners sued the fire department arguing that GRAF’s suppression fire had burnt their property.While they lost the lawsuit, this conflict reveals how the private ownership of forests – reaching 73% of the total forest in Catalonia, being roughly 20 percentage points superior to the European average – adds another layer of complexity to the management of forest (fires), which can be accentuated if the historic process of land abandonment is factored in.
In short, forest fires in Mediterranean Europe show how cutting-edge climate change litigation, EU climate policies and the political-ecological approach to stakeholders' actions interact in the same space and result in diverse approaches.