1. Beyond disinformation and censorship

In August 2025, Dutch politician Geert Wilders posted an inflammatory image on social media contrasting a young blonde woman labelled “PVV” (his party) with an angry older woman wearing a headscarf labelled “PvdA” (the opposition Labour Party).Footnote ²⁰ Critics compared the imagery to Nazi-era propaganda; the scandal consumed Dutch political discourse throughout late summer. But this was merely the latest in a continuous stream of controversies since Wilders’s coalition formed in 2024: near-collapse over budget disputes, ministerial resignations over racism allegations, repeated threats by Wilders to topple his own government.Footnote ²¹ Each crisis dominated news cycles. Throughout this period, the same government scrapped the National Rural Area Programme on nitrogen reduction,Footnote ²² discontinued electric-vehicle subsidies,Footnote ²³ raised motorway speed limits,Footnote ²⁴ extended fuel excise cuts,Footnote ²⁵ and planned to neutralise the industrial CO₂ levy.Footnote ²⁶ As in the US, these Dutch scandals were not exactly disinformation, and the environmental rollbacks were not censored. Both were publicly visible, yet attention to one systematically displaced attention from the other.

Current frameworks presume disinformation (false content) or censorship (suppressed content), that is, something absent or falsified. Distraction presumes neither falsity nor suppression; it manipulates signal-to-noise, not truth-value or access, saturating environments with competing claims such that no issue maintains traction.Footnote ²⁷ The DSA addresses systemic risks including threats to civic discourse, but its framework struggles to treat attention fragmentation itself (as distinct from the amplification of harmful content) as a cognisable harm requiring mitigation.Footnote ²⁸ GDPR secures transparency about data collection and processing, but does not reach the use of that data to design attention-capturing architectures through which fragmentation is engineered.Footnote ²⁹ The European Media Freedom Act establishes transparency duties for media ownership and protections for editorial independence, but these do not neutralise the market incentives that make attention fragmentation profitable regardless of who controls the platforms.Footnote ³⁰ The law tries to ensure information is true, accessible and pluralistic, but not that publics can sustain attention long enough for accountability. The assumption that accurate, available, diverse information produces democratic oversight becomes untenable when information environments fragment attention systematically.Footnote ³¹

2. The evolution of unregulatable power

Understanding distraction as mere information management misses something more fundamental: the psychological internalisation of distraction logic itself. Grasping this idea requires tracing how power has evolved from external imposition (which remains regulatable through conventional legal mechanisms) to internalised self-governance (which resists regulation because it operates through subjects’ own psychological compulsions).

Writing in the era of centralised mass broadcasting, Debord identified how late capitalism operates through dominance of appearance over substance. In his formulation, societies dominated by modern conditions of production see life become an immense accumulation of spectacles, where everything directly lived recedes into representation.Footnote ³² In Debord’s work, the spectacle was imposed from above: television, cinema and print media created one-directional flows where power operated through production of managed appearances.Footnote ³³ However, his view assumed a stable media landscape with clear distinctions between producers and consumers – conditions that no longer hold.Footnote ³⁴ Baudrillard recognised that the distinction between reality and representation had collapsed into what he called hyperreality, where simulation precedes and produces experience.Footnote ³⁵ In the age of social media, we are all creators of the spectacle. Debord’s spectacle still masked a persistent reality; Baudrillard dissolved even that distinction: simulation has become constitutive of what is real.Footnote ³⁶

While Debord and Baudrillard remained focused on representation (on how reality is displayed or simulated, on the spectacle as something external), Foucault excavated a deeper mechanism: how subjects internalise the very architecture of control. We are not only creators of the spectacle; the spectacle is within us. Foucault’s analysis of Bentham’s panopticon revealed how power could operate through anticipated surveillance: the prisoner who knows they might be watched at any moment internalises the constraints of power, disciplining themselves even when no guard observes.Footnote ³⁷ The architecture creates subjects who regulate their own behaviour. But Foucault’s disciplinary societies still operated through fixed institutional spaces (prisons, hospitals, schools, factories); power remained locatable. Deleuze identified the next shift. He argued that enclosed disciplinary spaces were giving way to control societies operating through continuous modulation via data systems that adjust to predicted behaviour.Footnote ³⁸ Control societies no longer operate through spatial confinement but through continuous monitoring and instant communication. Power is no longer spatially bound. This creates a problem for regulation: the law targets identifiable institutions and locatable exercises of power, but control societies operate through distributed systems with no central point to regulate. Legal intervention becomes merely another input for the system to modulate around – not a constraint but a variable to optimise.Footnote ³⁹ But even in Deleuze’s account, power retains an external dimension: data systems act on subjects, modulating their behaviour. Han identifies the final step: power that operates not on subjects but through them.

Han’s concept of psychopolitics extends Deleuze’s account to its ultimate form: complete psychological internalisation.Footnote ⁴⁰ Where Deleuze described ambient modulation through data systems, Han shows how control societies achieve their most insidious operation by restructuring subjects’ own sense of self and value. Through constant engagement with performance metrics (likes, shares, followers), users internalise the logic of endless self-optimisation. Users become self-governing – compelled not by external coercion but by internalised standards they experience as their own desires. The system no longer feels like a constraint: we are not forced to check notifications; we do so because engagement metrics have become measures of our own worth and identity; often, the compulsion feels rewarding.Footnote ⁴¹ Contemporary distraction operates at this psychopolitical level. The Wilders scandal succeeded because it was emotionally charged, algorithmically promoted, and calibrated to metrics that reward controversy.Footnote ⁴² Users became psychologically invested; online debates became sites where they “voluntarily” fragmented their own attention, performing outrage as participation.Footnote ⁴³ Users were not passively consuming; they were actively responding, experiencing their involvement as meaningful civic action. Environmental rollbacks, by contrast, are procedurally complex, affect dispersed populations over extended timescales, show effects delayed by years – they do not trigger the same psychological compulsion.Footnote ⁴⁴ Instead, they require sustained attention, technical understanding, institutional coordination – precisely what fragmented attention makes impossible. This is not to claim that environmental concerns as such are inaccessible to the attention economy: emotionally resonant or visually dramatic episodes can command platform visibility and sometimes do. The vulnerabilities this article identifies lie elsewhere, in the procedural infrastructure on which environmental accountability runs: consultation windows, monitoring cycles, permitting review and compliance litigation. None of these carry the properties platforms reward.

3. Platform architecture as psychopolitical infrastructure

Han describes psychopolitics as a condition – the internalisation of self-optimisation as identity. But what produces this condition in its contemporary form? A growing body of scholarship identifies platform architectures as a significant source. Digital platforms do not merely capture attention but restructure subjectivity itself. Where broadcast media captured attention in discrete blocks, digital platforms pursue what Wu calls “continuous capture” across the entire waking day.Footnote ⁴⁵

Habermas identifies this shift as a further structural transformation of the public sphere.Footnote ⁴⁶ The deliberative preconditions that his framework identifies (sustained engagement, exposure to contrary views, willingness to revise positions through argument) are especially stringent for what environmental governance requires: publics capable of following technical debates over time, weighing competing interests, and holding institutions accountable across extended timescales. When platforms optimise for engagement metrics that reward controversy over complexity, emotional reaction over reasoned response, these preconditions erode.Footnote ⁴⁷ The public sphere does not disappear; it fragments into disconnected enclaves where attention is too fractured to sustain the institutional focus environmental accountability demands. Sunstein pressed a related argument: democratic deliberation requires certain background conditions, including exposure to shared information and unanticipated viewpoints, that markets alone will not provide – a structural deficit that platform-mediated fragmentation has intensified rather than resolved.Footnote ⁴⁸

The psychopolitical transformation of the public sphere is particularly relevant for regulatory design. Thaler and Sunstein’s influential work on the architecture of choice describes how environments can be structured to shape decisions while preserving the subject’s capacity for deliberation – the theoretical basis for “nudge” interventions that guide behaviour without undermining autonomous choice.Footnote ⁴⁹ Platform architectures operate differently. Where nudges assume a deliberating subject whose choices can be guided, psychopolitical transformation restructures the subject’s capacity to sustain attention in the first instance. These same conditions, which nudge theory presupposes and which environmental law’s participation and oversight mechanisms require, become unavailable. Regulatory interventions designed for an architecture of choice confront a more fundamental problem when the architecture has reshaped the chooser.Footnote ⁵⁰

The mechanism operates through four interlocking features: algorithmic recommendation systems that maximise engagement by surfacing emotionally charged content; variable reward schedules that induce compulsive checking; infinite scroll interfaces that eliminate natural stopping points; and notification systems calibrated to interrupt sustained focus.Footnote ⁵¹ These are not incidental features. Wu’s concept of the “attention broker” clarifies the underlying market structure: platforms offer free services to users while selling their attention to advertisers – the basic transaction of nineteenth-century newspapers, radically intensified.Footnote ⁵² The currency is engagement itself: measurable, optimisable, infinitely divisible units of human focus. These mechanisms do not merely capture attention; they provide the material infrastructure through which Han’s psychopolitical subjects are produced.

The cycle is self-reinforcing. As Bietti shows, platforms capture attention to collect data, then use that data to design more engaging experiences that capture more attention.Footnote ⁵³ The spiral produces what she terms “a harmful commodification and erosion of time and attention which shrinks the human experience.”Footnote ⁵⁴ The dominant platform architectures optimise for a specific modality of capture: many short, interruptible interactions that maximise data signal per unit of time and keep users reachable for the next engagement cycle. Fragmentation is therefore not definitional to attention capture but contingent on the design choices the four mechanisms above embody. Conventional approaches seem to miss the problem entirely. Attention markets represent, in Newman’s phrase, “the largest sector of the modern economy to have gone unnoticed by antitrust regulators.”Footnote ⁵⁵ When platforms offer free services, traditional price-based analysis fails to register harm. Yet the extraction of more attention than users would willingly provide in a competitive market produces real costs – what Pałka characterises as cognitive pollution: users unknowingly barter attention, emotions and cognitive resources through technologically managed systems that legal frameworks struggle even to conceptualise.Footnote ⁵⁶

Cognitive pollution has direct implications for legal accountability. The same platform architectures that produce psychopolitical subjects simultaneously degrade the attentional preconditions on which any attention-dependent legal regime depends, including the environmental governance frameworks examined in the next section. Section III.3 will consider some regulatory interventions that remain possible within these constraints, but any realistic assessment must recognise that attention fragmentation is not an algorithmic bug to be patched but a feature from which platform capitalism profits. Conventional legal frameworks, which target content and access, are poorly fitted to regulate psychological compulsion at the level where platform architectures produce it. Even if regulation curtailed engagement-maximising algorithms, it would still face populations whose sense of worth has become bound to platform metrics, as what began as external incentive structures has been internalised as identity itself.

Environmental governance is particularly vulnerable because accountability unfolds over years, not news cycles or social media trends. When attention fractures, monitoring lapses, compliance deadlines slip and litigation loses momentum.Footnote ⁵⁷ By the time attention returns, accountability windows have closed: illegal clearing has occurred, emissions have been released, and regulatory changes are embedded in administrative code. This is a specific instance of a more general psycho-structural problem for law in times of platform capitalism: enforcement depends on populations capable of sustained and coordinated attention over long timeframes, but those populations have been psychologically restructured toward fragmentation and reactive engagement. The conditions for accountability that law presumes are not merely absent but structurally underprovided at the scale on which accountability operates. They are available in concentrated bursts around platform-legible events and unavailable for the slow, technical, distributed work that legal accountability requires.

1. Susceptibility to attention fragmentation

The analysis of the distraction mechanism developed above allows some predictions about how environmental governance would fare under conditions of sustained attention fragmentation. When a crisis monopolises the public sphere for extended periods, the analysis predicts that parliamentary agendas would reorder toward immediate exigencies; news cycles would narrow to crisis-related matters; civil-society organisations would shift staff and litigation capacity toward urgent response work. Formal environmental procedures would continue to run, but the precondition those procedures presuppose, sustained attention, would be systematically undermined. Consultation windows would open and close with diminished engagement; monitoring cycles would slip as inspectors faced redeployments and access constraints; temporary relaxations, introduced as pragmatic responses, would accumulate under headings that made them difficult to contest in real time.

The COVID-19 pandemic, beginning in March 2020, created precisely such conditions across the EU.Footnote ⁵⁸ While definitive causal attribution remains epistemically difficult, developments during this period are consistent with attention-mediated effects on environmental governance.Footnote ⁵⁹ In Poland, controversies around forest management continued while infringement proceedings concerning the Białowieża Forest remained live – a pattern suggesting concurrent scrutiny had diminished.Footnote ⁶⁰ In Germany, the government revisited elements of its coal-phase-out schedule and overhauled industrial permitting laws to shorten approval timelines – developments that align with the predicted effects of attention scarcity on complex regulatory processes.Footnote ⁶¹ In Italy, emergency decrees amended the Environmental Code to fast-track EIAs for “priority projects,” compressing consultation and screening periods – fitting the prediction that participation requirements would be met formally while practical engagement declined.Footnote ⁶² In Spain, coastal and urban-development permissions advanced with truncated consultation periods – illustrating how the temporal vulnerability might manifest in practice.Footnote ⁶³ In France, reports indicate that industrial-emissions inspections faced postponements and regulatory follow-up slipped – a dynamic that accords with the predicted effects of administrative redeployment on monitoring capacity.Footnote ⁶⁴

Legal guarantees of access to information, participation, and justice remain formally available, but the practical capacity to convert them into effective mobilisation diminishes. As the notion of psychopolitics suggests, such effects would operate not merely at an institutional level but at a psychological one: populations would lack the capacity for sustained attention that environmental law presupposes. The distraction mechanism does not require states to deliberately hide environmental decisions. Rather, the features that ordinarily make EU environmental governance work depend on people objecting and pursuing claims within defined windows: front-loaded appraisal and participation under the EIA Directive, continuous surveillance and reporting under the Habitats and Birds DirectivesFootnote ⁶⁵ across the Natura 2000 network, and an expectation of accessible judicial review under the Aarhus Convention.Footnote ⁶⁶ But when attention is monopolised elsewhere for extended periods, the formalities can be met, yet the function fails.

The Brazilian example from 2020 rendered this logic explicit: Ricardo Salles, President Bolsonaro’s Environment Minister, told colleagues to passar a boiada (“let the cattle through”) – to push through deregulatory changes while press attention was fixed on COVID-19.Footnote ⁶⁷ Salles’s bluntness proves that the mechanism can be deliberately deployed. But the explanation is not reducible to individual intent. What Salles articulated explicitly was a strategy that the structural conditions made rational: when attention fragments, the cost-benefit calculation for deregulation shifts decisively. Whether actors consciously exploited this window or whether rollbacks emerged from routine administrative responses, the same structural incentives operated. The system produces both the opportunity and the logic; actors simply respond to those incentives.Footnote ⁶⁸

2. Four vulnerabilities

This section articulates four structural vulnerabilities that make environmental governance particularly susceptible to attention fragmentation. The framework identifies structural conditions that make governance failure more likely, not inevitable; the COVID-19 pandemic helps illustrate these vulnerabilities, though definitive causal attribution is not possible.Footnote ⁶⁹

The first vulnerability is temporal. Environmental harms typically unfold over long horizons, while crisis politics is measured in hours and days. The EIA Directive organises decision-making through ex ante appraisal and participation within fixed consultation windows.Footnote ⁷⁰ After those windows close and projects receive development consent, later legal challenges become more difficult. The Court of Justice of the EU (CJEU) has established standards that prevent automatic annulment for procedural defects.Footnote ⁷¹ In Altrip, the Court held that annulment depends on whether the procedural breach could have influenced the outcome.Footnote ⁷² Under conditions of sustained crisis, attention would be trained on immediate risks, allowing consultation deadlines linked to infrastructure or industrial permitting to pass with diminished practical engagement even where authorities comply with publication and access requirements. Reports from the COVID-19 period align with this prediction.Footnote ⁷³ The effects of relaxed timelines or extended plant operations, by contrast, will manifest in air quality, carbon budgets and habitat integrity only over years. This temporal asymmetry favours decisions whose consequences are slow and dispersed, while disadvantaging public mobilisation that depends on near-term salience.Footnote ⁷⁴ The pattern appears across Member States (as elaborated above).Footnote ⁷⁵ German decisions on coal and industrial operations occurred while the health emergency dominated parliamentary time. Italian emergency legislation compressed participation windows. Coastal works in parts of Spain proceeded under conditions limiting face-to-face scrutiny. Polish forest management controversies continued alongside pre-existing litigation, in an environment where concurrent attention appears to have diminished. French inspections were reportedly postponed, with consequences that will manifest only over years. None of this required abandoning the law. The theoretical point is that law’s time-sensitive participation and review functions can operate formally while collective attention is occupied elsewhere.

The second vulnerability is administrative dependence on continuous monitoring. EU environmental law is not self-executing in the strong sense; it relies on a bureaucratic infrastructure of inspectors, scientists and coordinators to make texts bite.Footnote ⁷⁶ The Habitats and Birds Directives assume ongoing surveillance of conservation sites, periodic reporting and responsive enforcement when pressures are detected. EIA presupposes not just documents but site visits and inter-agency verification; industrial emissions rules presuppose routine and unannounced inspections. Under conditions of crisis, lockdowns and emergency redeployments would disrupt these routines. Automated sensing, satellite feeds and operator self-monitoring continue to generate data, but visits, sampling, interviews and multi-agency coordination are expected to slip. Reports from the pandemic period support this prediction.Footnote ⁷⁷ Where authorities rely more heavily on operator-submitted documentation, the risk profile shifts: the capacity to contest technical claims in real time narrows, and the deterrent effect of potential inspection weakens.Footnote ⁷⁸ French sanitary restrictions reportedly led to postponements in inspection calendars; Italian authorities used emergency norms to manage procedural timetables; Spanish coastal enforcement faced practical obstacles to onsite verification; German regulators balanced public-health constraints with permitting decisions. These developments fit the predicted pattern: the law remains in place while monitoring capacity diminishes. This is particularly relevant as the credibility of compliance systems depends on the expectation of inspection and prompt corrective action, not only on paper duties.Footnote ⁷⁹ When that expectation weakens for extended periods, behaviour rationally shifts, and violations are more likely to persist undetected or unremedied until attention returns.Footnote ⁸⁰

The third vulnerability is relational. Environmental accountability depends on an unbroken chain running from the discovery of harm to its remedy. The links are familiar: detection, measurement, reporting, investigation, litigation, enforcement. But the chain breaks if any single link fails for long enough.Footnote ⁸¹ Under conditions of sustained crisis, several links would come under simultaneous strain. The Aarhus Convention’s guarantees remain formally available, but their conversion into effective claims would be impeded by reductions in attention and capacity at multiple stages. The COVID-19 period points to this dynamic.Footnote ⁸² The CJEU’s case law recognises both the importance of meaningful participation and the need for effective access to courts: Trianel clarified that environmental NGOs must be able to contest permitting decisions that fall within the scope of EU environmental law.Footnote ⁸³ Lesoochranárske zoskupenie required national courts to interpret domestic rules consistently with Aarhus to ensure environmental organisations have standing to challenge decisions liable to contravene EU nature protection.Footnote ⁸⁴ Edwards and Pallikaropoulos and Commission v United Kingdom emphasised that litigation costs must not be prohibitively expensive for claimants.Footnote ⁸⁵ These principles do not disappear during crises. But the probability of timely activation seems to decline when staffing, media capacity and court operations are simultaneously constrained. Under such conditions, even detected violations would struggle to move through measurement and reporting into investigation and courtroom pleadings within periods when injunctions or suspensive relief would be most effective. The COVID-19 period, with its well-documented constraints on court operations and civil-society capacity, provides an illustration of how such conditions can impede the accountability chain. In such contexts, “temporary derogations” or “emergency adjustments” become permanent arrangements – a pattern that matches developments observed during and after the pandemic.

The fourth vulnerability is distributional. Benefits of non-compliance and deregulation are concentrated and immediate, while harms are diffuse and delayed.Footnote ⁸⁶ Environmental law is often tasked with internalising externalities that markets would otherwise spread across space and time – whole ecosystems and future generations.Footnote ⁸⁷ When attention is fractured, the actors who gain from deregulation (specific energy utilities, industrial operators, developers) have both the strongest incentive to act decisively in narrow time windows and the organisational capacity to do so. The losses they externalise are dispersed across populations and timescales: incremental respiratory morbidity linked to air quality; biodiversity loss compounded by missed breeding seasons; coastal erosion locked in by decisions that are hard to reverse once concrete is poured. EU instruments aim to rebalance this asymmetry through participation rights under Aarhus and the EIA Directive, the prospect of judicial review under national procedures shaped by Trianel and Lesoochranárske, and the “not prohibitively expensive” standard elaborated in Edwards and Commission v United Kingdom. Each of these depends on mobilised constituencies and accessible counsel.Footnote ⁸⁸ Those are precisely what would be hardest to assemble and deploy when public attention is consumed by daily emergency briefings and household-level crisis management. Measures framed as short-term pragmatism for industry or infrastructure can be taken and implemented while scrutiny is weakest, and can then shape the factual baseline against which any later challenge must be judged. The pattern identified above accords with this dynamic: law remains formally intact, but the payoff matrix changes when the audience that normally watches and contests decisions is structurally constrained.

3. Convergent incentives and regulatory limits

The foregoing analysis suggests a mechanism that recurs across Member States despite differences in political systems and regulatory culture: when crises command immediate attention, environmental rollback can proceed with limited contestation. The COVID-19 pandemic provides an illustration consistent with this mechanism, but the conditions persist beyond the pandemic. Formal rights remained in place, yet practical capacity to exercise them was constrained as attention fragmented. The problem is that attention-dependent legal regimes presume sustained attention but cannot guarantee it, and environmental law is the case where this vulnerability becomes most visible. These vulnerabilities are not quirks that will recede as memories of COVID-19 fade. Similar windows open with energy, migration, economic and security crises – concentrated private interests act while diffuse public interests cannot effectively resist.

The energy crisis following Russia’s invasion of Ukraine exhibited the same structure. From early 2022, public discourse narrowed around supply security, price spikes, winter heating, industrial shutdown risks and sanctions. Within that window, significant environmental flexibilities were adopted. Germany reintroduced coal-fired units from reserve and authorised liquefied natural gas (LNG) import terminals under accelerated procedures with compressed consultations.Footnote ⁸⁹ Other Member States likewise relaxed caps or timelines on conventional generation. Union-level instruments enabled shortened timetables and prioritised “security of supply.”Footnote ⁹⁰ Measures were often framed as temporary necessities, yet by 2025 several emergency authorisations had become part of medium-term infrastructure planning. The pattern was consistent with the vulnerabilities identified in Section III.2: environmental instruments remained formally in force while the probability that participation would be acted upon within relevant windows declined.Footnote ⁹¹

Understanding why distraction endures even once recognised requires situating it within two distinct profit logics that operate inside contemporary capitalism. The first is the familiar incentive of capital to externalise environmental costs wherever possible. Compliance with emissions limits, conservation duties, monitoring obligations and remediation funds is expensive; any reduction in the probability or intensity of enforcement raises returns.Footnote ⁹² The second is the business model of platform capitalism, which commodifies attention by rewarding engagement and, under the specific architectures described in Section II.3, a fragmented modality of engagement in particular.Footnote ⁹³ Engagement metrics convert novelty, outrage, and rapid update cycles into revenue and investments.Footnote ⁹⁴ The economic system monetises the very self-optimising impulses that individuals experience as freedom, ensuring that distraction reproduces itself without overt coercion.Footnote ⁹⁵ Thus, fragmented attention is the commodity form of the digital economy. The same metrics that generate value for platforms corrode the temporal and organisational conditions on which legal accountability depends, environmental accountability foremost among them.

A conventional approach to reform would treat distraction as a governance failure remediable by transparency, audits or media literacy. But these remedies do not neutralise the underlying incentives: requiring platforms to reveal how their algorithms amplify content does not change the profitability of fragmentation. So long as engagement drives value, platforms rationally optimise for it. These logics align without necessary coordination. Platform algorithms are indifferent to content as long as it sustains engagement. In practice, that indifference systematically benefits actors whose projects profit from evading scrutiny during short windows.Footnote ⁹⁶ Acute environmental crises themselves supply high-engagement content while also justifying emergency flexibilities; both dynamics displace attention from the slow, technical work of oversight. And the loop is self-reinforcing: crisis saturates feeds and agendas; saturation lowers the probability of contestation; deregulatory moves proceed; weakened constraints contribute to future crises that will, in turn, monopolise attention. In short, distraction is a systemic outcome rather than a temporary aberration – not because extractive industries and platforms coordinate strategies, but because their distinct profit-maximising logics converge structurally. Indeed, the absence of deliberate coordination makes the alignment more durable, not less significant.Footnote ⁹⁷ It does not depend on fragile agreements between sectors that antitrust or conspiracy law might reach, but on independent profit-maximising logics that converge on the same structural outcome. Coordination can be disrupted; convergent incentives persist until the underlying business models change.

Neither framework, environmental nor digital, addresses the underlying structural problem. European environmental governance remains institutionally sophisticated, but several core instruments implicitly treat attention as abundant and evenly distributed when it is neither. Digital regulation, for its part, does not yet secure the attentional preconditions that attention-dependent legal regimes require. Requiring platforms to boost environmental content visibility under the DSA’s systemic-risk framework might seem attractive. But this crosses what Husovec identifies as the Commission’s “red line”: content-specific mandates implicating speech protections even when the content is lawful.Footnote ⁹⁸ The constraint reveals something theoretically significant: legal frameworks designed for an era of information scarcity and government censorship struggle to address private actors who manipulate attention allocation rather than suppress speech. As Wu has argued in the US constitutional context, the First Amendment doctrine becomes “obsolete” when the threat is not state suppression but the weaponisation of speech itself through flooding tactics – a structural gap that EU law confronts in different doctrinal terms but with similar effect.Footnote ⁹⁹ Law cannot mandate attention to particular subjects without confronting the boundary between platform regulation and speech control.

The broader debate on platform intervention offers several families of response: antitrust action targeting attention-market concentration; restrictions on behavioural advertising that funds engagement-maximising design; interoperability mandates that reduce platform lock-in; and direct limits on recommender optimisation. Each addresses part of the causal chain identified above, but each also faces the constraint that platforms operate transnationally while regulatory authority remains fragmented. Procedural tools, such as disclosure and consultation design, also merit attention not because they are sufficient, but because they operate within existing EU competences and target a vulnerability environmental governance presents in particularly acute form: the mismatch between attention-dependent accountability mechanisms and attention-fragmenting information environments. The value of these proposals lies less in their efficacy than in what their limits reveal: the law cannot secure its own preconditions when those preconditions are systematically undermined by the economy within which law operates.

One procedural proposal, drawing on Cobbe and Singh’s framework for the regulation of recommending, would require platforms to disclose how ranking and recommendation systems (the algorithmic amplification, variable reward schedules, and infinite scroll interfaces) affect the visibility of public consultations, without mandating altered rankings.Footnote ¹⁰⁰ Their framework targets the activity of recommending rather than the content recommended, a distinction that avoids the speech-control problems Husovec identifies. It is worth noting that the distinction between activity and content has not held up cleanly in CJEU case law. In Peterson v Google and YouTube, and in Elsevier v Cyando, the Grand Chamber treated the activity of recommending videos as part of the ordinary operation of a hosting platform, not as a mark of active contribution sufficient to trigger primary liability for communication to the public. The DSA has nevertheless carved out recommender systems as a distinct object of duties for transparency and risk assessment, and it is that narrower procedural trajectory, rather than Cobbe and Singh’s broader reading of liability, that the disclosure proposal here tracks.Footnote ¹⁰¹ Whether such disclosure would change behaviour remains uncertain. Keller has shown how laws using “design” or “systems” language often function as euphemisms for content mandates, and the line between speech-restrictive and non-speech-restrictive design regulation can be difficult to draw in practice.Footnote ¹⁰² Structural incentives toward engagement would persist regardless of disclosure requirements.

On the environmental law side, “distraction-resistant” review periods could be mandated for major rollbacks and high-impact infrastructure. These would establish minimum intervals between proposal and adoption that cannot run exclusively during declared emergency periods, alongside duty-to-consult provisions calibrated for conditions of crisis.Footnote ¹⁰³ Public funding could underwrite baseline monitoring and inspection capacity that does not depend entirely on NGO attention or variable media interest. Union-level coordination could reduce the scope for cross-border arbitrage whereby one Member State advances deregulatory measures while Union-level scrutiny is focused elsewhere. These interventions target the vulnerabilities identified in Section III.2: mandatory review intervals address temporal mismatch by ensuring decisions cannot crystallise while attention is elsewhere; public funding stabilises monitoring capacity independent of crisis-driven redeployments; Union-level coordination reduces the arbitrage that exploits fractured accountability chains; and platform disclosure requirements aim to rebalance the informational asymmetry between concentrated beneficiaries of deregulation and diffuse publics bearing environmental costs.

These proposed measures face clear structural limits, however. No legal instrument can compel prolonged focus across a population whose information environment is profitably engineered to fragment attention. Environmental law and digital regulation operate within, not outside, the incentive structure of contemporary capitalism. When engagement is the currency of platform value and distraction reduces enforcement risk for regulated industries, the result is a structural alignment that regulation can only partially counteract. The task for EU regulation, then, is twofold: to harden procedures against exploitation during crisis windows and to acknowledge, in doctrinal and policy design, that attention is a scarce resource. Without that recognition, the Union will continue to produce formally strong instruments whose effectiveness falters whenever attention is most limited.