1. Introduction
18 June 2024 saw the adoption of the European Union (EU) Nature Restoration Law (EU NRL).Footnote 1 It marked the conclusion of a nail-biting episode in EU lawmaking – until the very last moment, the fate of the EU NRL had hung in the balance as farming communities across the EU had mounted a spirited opposition to its enactment.Footnote 2 Their concerns revolved chiefly around the anticipated impacts of the law’s most distinguishing feature, namely, its commitment to the achievement of quantified nature restoration targets within the coming five, fifteen, and twenty-five years.Footnote 3
The EU NRL forms part of a recently expanded body of environmental legislation that explicitly sets out the environmental preservation, protection or restoration goals in the service of which the instrument has been enacted. It is an approach that has been popularized primarily in the field of climate change, where the incorporation of binding overall greenhouse gas (GHG) emissions reduction targets, to be reached by a set deadline, has become an expected feature of legislation across jurisdictions.Footnote 4 Indeed, their occurrence in the climate law context has become so commonplace that it could almost make us forget how unusual it is for a law, even an environmental law, explicitly to commit to a predetermined outcome. Yet target laws represent a major shift from earlier generations of environmental legislation, which instead concentrated on governing the environmental risks associated with economic development but which left the articulation of desirable systemic outcomes to the realm of environmental policy.
This article argues that the integration of binding targets in environmental legislation is both important and positive because targets can help the discipline to overcome several of its most persistent effectiveness challenges. At the same time, however, targets inject a high level of complexity into environmental legal frameworks, a complexity that needs to be carefully considered and negotiated for target laws to deliver on their promise. In developing its argument, the article contributes to the literature, firstly, by identifying and reviewing three key characteristics that have traditionally stunted the capacity of environmental legislation to deliver transformative change. These are, respectively, its vulnerability to short-termism, its relative obscurity, and its risk regulatory framing, which drives law to operate at the margins instead of enabling systemic change. Secondly, to illustrate both the advantages and the challenges that accompany the emergence of binding, overarching targets in environmental law, the article offers an exploration of the paradoxical nature of targets, and connects the uncovered paradoxes to the experienced complexities that attend the successful implementation of environmental target laws. In this manner, the article makes a third contribution to the compact but growing and insightful body of writing on environmental target laws. It offers a fresh perspective on previously identified complexities and introduces others that have received limited attention in the literature. Finally, and most importantly, by highlighting the complexities of environmental target laws, the driving aspiration of this article is better to equip public authorities in their implementation and thus maximize their chance of success.
This article proceeds in five stages. Section 2 traces the evolution of targets in environmental law, charting their journey from the policy periphery to the legislative core and identifying the emergence of ‘target laws’ as a distinct category of environmental legislation. Sections 3 and 4 explain why binding targets make an important contribution to environmental law and are worth defending, even in the face of an impending backlash and even when accounting for the various design, implementation, and enforcement challenges that binding targets unleash. Section 4, moreover, unpacks the paradoxical nature of targets themselves, revealing how their apparent simplicity masks a deep conceptual complexity that inevitably permeates the legal frameworks in which they are embedded. Section 5 then confronts the practical challenges that flow from this complexity, examining in turn the difficulties surrounding the temporality, legal status, implementation, and enforceability of environmental target laws. Section 6 concludes by affirming that while these challenges are formidable, they are neither insurmountable nor reason enough to abandon the target law project, provided we approach their resolution with clear-eyed recognition of the complexities involved.
2. The Evolution of Targets in Environmental Law
Pollution control targets have a venerable track record in environmental law and policy. They feature across environmental policy areas, jurisdictions, and decades – from air pollution targets in 1970s United States (US) clean air lawFootnote 5 and water quality targets in early millennial EU legislation,Footnote 6 to recently adopted packaging waste reduction targets in Australia.Footnote 7 Nature conservation and restoration targets, too, are old familiars of environmental law and policy. As far back as 1952, the Indian National Forest Policy introduced a national aspiration of having at least one third of the total land area of the country under forestry cover.Footnote 8 The 2006 EU Action Plan for Biodiversity set a target of halting biodiversity loss by 2010.Footnote 9 Five years later, the successor EU Biodiversity Strategy for 2020 expressed six environmental targets ranging from conserving nature to combating invasive alien species and including a target of at least 15% of degraded ecosystem restoration by 2020.Footnote 10
Notwithstanding the constancy of their presence, over time the expression, role, and prominence of targets in environmental law has been subject to major change. Legislated environmental targets from the 1970s to the early 2000s tended to be situated at one of two extremes of the standardization spectrum. They were either open-ended and phrased in purposive but vague terms, such as the achievement of ‘sustainable outcomes’, of a ‘high level’ of environmental protection, or of ‘improved’ air and water quality and biodiversity, each of which aspirations remained undefined and unquantified.Footnote 11 In the alternative, targets were highly specific, itemized in focus and sectorally delineated. Instruments containing the latter – from California’s phase-out of methyl tert-butyl ether (MTBE) from gasolineFootnote 12 to the EU’s removal of priority hazardous substances from surface waters and groundwaterFootnote 13 – zeroed in on individual pollutants or select sets of environmental receptors, while leaving questions of cumulative impacts and overall ecosystems balance largely to the side. To the extent that a third category of overarching yet quantified targets did exist, it typically featured in non-binding policy papers and implementation guidelines, rather than in the binding dispositions of environmental law and regulation. This was the case for both the Indian National Forest Policy and the EU’s successive biodiversity programmes. Only with rare exception did broad yet quantified targets find their way into the body of environmental legislation. The most famous example of such exception is unquestionably the Kyoto Protocol, which contained quantified overall GHG emissions reduction targets on a country-by-country basis.Footnote 14 A further case conceivably could be made for the chlorofluorocarbon (CFC) phase-out requirements of the Montreal Protocol on Substances that Deplete the Ozone Layer,Footnote 15 although the range of substances concerned and their commercial applications were specific and limited in number.
With the advent of climate change legislation, the third category of broad yet quantified targets has become a much more familiar sight in environmental law. Nearly one quarter of countries across the world have adopted, or consented to,Footnote 16 legally binding overall GHG emissions reduction targets to be achieved by defined deadlines.Footnote 17 Beyond the climate change sphere, overarching and quantified targets now also feature in biodiversity legislation, most prominently so in the 2024 EU NRL, which, in Article 1, fixes an overall target for restoration measures to be adopted by 2030, 2040, and 2050. Article 4 details the targets further for terrestrial, coastal, and freshwater ecosystems respectively, and Article 10 calls for an additional three billion trees to be planted in the EU by 2030. These are large-scale, transformative objectives far beyond anything contemplated in nature conservation legislation up to that point. In a similar vein, the United Kingdom (UK) Environment Act 2021 mandates the adoption of legally binding long-term targets in the priority areas of air quality, water, biodiversity, resource efficiency, and waste reduction.Footnote 18 Correspondingly, the UK government’s 2023 Environmental Improvement Plan commits, among other things, to restore or create more than 500,000 hectares of wildlife-rich habitat by 2042; to increase tree canopy and woodland cover to 16.5% of total land area by 2050; to reduce population exposure to fine particulate matter (PM2.5) by 35% in 2040 compared to 2018 levels; and to halve the waste per person that is sent to residual treatment by 2042.Footnote 19
Hence, whereas targets used to reside either in the policy periphery above environmental legislation or in the implementation layers below it, they are now also found at the centre of environmental legal frameworks. In recent years we have witnessed a proliferation of overtly target-driven environmental legislation; of legal and regulatory frameworks that centre broad, quantified and long-term environmental restoration or improvement objectives, and that organize implementation with reference to and in pursuit of these objectives. This third category of targets comes in a variety of shapes and forms. While all need a degree of longevity to function as a target, timelines may vary from a handful of years to several decades. Some targets are specified in the legislation itself; others are legislatively mandated but effectively adopted by delegation. Some are ‘input’ targets, focusing on the environmental impacts which are sought to be controlled,Footnote 20 others are ‘output’ targets which quantify a minimum result level,Footnote 21 and yet a third group focuses on ‘throughput’ and specifies a particular level of intervention to be achieved within a set deadline.Footnote 22 What they all share in common, however, and what distinguishes them from the previous generations of environmental targets is that they are binding and they eye an overarching, ostensibly measurable and transformative goal. Environmental laws containing this kind of target constitute what, for the purposes of this discussion, will be referred to as ‘target laws’.
3. The Contribution of Environmental Target Laws
How meaningful is the emergence of environmental target laws? On one account, their presence could be argued as too sectorally confined to warrant sustained contemplation. Target laws have been adopted, overwhelmingly, in response to the climate change mitigation challenge, which displays singular attributes in how it is framed and represented. In a recursive iteration that evolved and hardened over decades, a globally recognized account coalesced around the proposition that, to avert catastrophe, the world should strive to keep global average temperature change well below 2 degrees Celsius (°C) compared to pre-industrial levels. In the past ten years, a more contested yet equally widespread narrative has consolidated around the premise that, to this end, the more affluent countries in the world as a minimum will have to drastically cut back their net carbon dioxide (CO2) production over the next 25 years. This unique context lends itself well to the emergence of systemic target-setting strategies. Other environmental challenges, however, from deforestation to plastics in the ocean, are not buttressed by similarly parsimonious, simplified, and globally established narratives.
A second consideration is that, even if target laws were indeed the herald of a more widespread and enduring change in environmental law, they will fail to thrive in the current climate of global economic uncertainty, intense geopolitical volatility and, particularly, the rapid rise of an environmentally regressive rhetoric accompanied by the equally swift normalization of climate change denialism. From the Trump administration’s repeat abandonment of the Paris AgreementFootnote 23 to the abrupt restyling of the European Green DealFootnote 24 in more business-friendly hues,Footnote 25 it is currently difficult to envisage much gusto for any further ambitious environmental target-setting. The near failure of the 2024 EU NRL – the demise of which was averted only after its scope, targets, and timelines were substantially watered downFootnote 26 – illustrates the point. In times of heightened scrutiny, laws that overtly broadcast their environmental ambitions might be much more vulnerable to attack than those that only speak of general aspirations or, alternatively, foreground technical minutiae.
It might therefore be tempting to write off environmental target laws as mildly intriguing but ultimately irrelevant flashes-in-the-pan. That is not the position this article adopts. The premises of this article are instead that, firstly, environmental target laws have acquired sufficient critical mass to merit further study; secondly, any predictions of their demise are premature and based on excessively myopic assumptions about future developments in environmental law and beyond; and, thirdly, if, contrary to these assumptions, environmental target laws were to come under sustained threat, there is a strong case to be made for defending them. The effectiveness with which such a case can be made hinges on possessing a thorough understanding of how they work, what they contribute to the field of environmental law and regulation, and which new challenges they introduce. That is the core contribution this article hopes to make.
The first point is the most straightforward: even if they were reserved exclusively for the realm of GHG mitigation – which is not the case, as evidenced in both the 2021 UK Environment Act and the EU NRL – this domain by itself is sufficiently weighty to justify close attention to the role of targets in the construction of climate change as a legal and governance challenge. In the same vein, even if the backlash against responsible climate change governance persists, it is highly unlikely that this would result in the demise of all, or even a majority of existing environmental target laws. Laws are sticky and their repeal inevitably comes with high political and opportunity costs attached.Footnote 27
Secondly, even if environmental target laws run into implacable political headwinds in the coming few years, the lessons from this experience will endure. To state but the most obvious points, targets might lose their appeal in the climate mitigation field, but they could emerge in other areas. The more that climate change mitigation targets erode, the more demand might surge for binding adaptation and loss and damage mitigation targets.Footnote 28 By the same token, it is not difficult to envisage legally binding systemic targets surfacing in other law and policy areas, from health and migration to housing law.Footnote 29 Even if binding targets were temporarily excised from environmental law, their role and potential within public governance more broadly merits further analysis.
Thirdly, it is the contention of this article that, in vogue or not, environmental target laws are worth defending. They have the potential to ramp up the capacity of environmental law to deliver on its promise of effectiveness as a safeguard of environmental sustainability. Unquestionably, this will be a difficult promise to fulfil. As the article will show, targets are complex and, even, paradoxical concepts. Consequently, their anchoring role in environmental law opens a variety of traps and creates a wealth of challenges that need to be carefully negotiated to reap the benefits of the dynamism and responsiveness that targets can inject in environmental law. Yet negotiating these difficulties, it is argued, is very much worth the effort because binding targets can help to overcome some of the most intractable obstacles to sound environmental governance, namely, its tendency towards both short-termism and self-marginalization, as well as its reputation for opacity and dullness. The next paragraphs discuss each point in turn.
3.1. Beyond the Horizon
Environmental policy is a field afflicted by the tragedy of the horizon.Footnote 30 Environmental protection measures typically come with significant upfront economic and political costs attached, whereas the benefits materialize after longer periods of sustained investment. Hence, environmental regulatory restrictions rarely ‘pay off’ within one and the same electoral cycle.Footnote 31 This drives successive governments to underinvest in environmental quality, a bias that is furthermore exacerbated by the well-documented controversies that accompany the valuation of environmental resources and the costing of environmental damage.Footnote 32
The presence of long-term, binding targets can offer a counterweight against this pull towards environmentally destructive and ultimately inefficient short-termism. Their binding status provides a degree of insulation against the risks of continuous re-litigation and, instead, it may shift the focus of the policy debate towards questions of effective implementation.Footnote 33 In times of wavering governmental commitment, the combination of a long-term perspective with a binding status may deliver just enough resilience to safeguard the environmental agenda from excessive erosion.
It goes without saying that these advantages are not absolute. The existence of long-term targets may reduce the risk that too much political capital is squandered on initiatives that are attractive only in the short term, but it does not eliminate the temptation altogether. Nor does bindingness constitute an impenetrable armour against the risk of backsliding.Footnote 34 However, these factors do unquestionably feed into executive calculations about the relative gains and losses attached to either staying the course or forcing through legal change. The downgrading or undoing of legislated commitments constitutes a much more visible and jarring political act than the massaging of informal policy goals. Consequently, it invites a considerably higher level of public scrutiny.Footnote 35 Binding long-term targets may not be a panacea against the lure of short-term, environmentally destructive and ultimately inefficient decision-making, but they certainly boost policy resilience.Footnote 36
3.2. Beyond Risk Regulation
Binding, overarching targets also inject purpose and dynamism into environmental law. Their promise is that, by the end of the stipulated transition period, a substantive result will be delivered that changes the situation ex ante. This predisposition towards systemic change signifies a fundamental departure from the ethos of risk regulation, which has dominated environmental legislation since the 1980s. Risk regulation does not map out a predetermined direction of travel; instead it starts from the premise that any industrial, technological or economic development is acceptable as long as the accompanying risks generated by such development have been adequately identified, assessed, and managed.Footnote 37 In the context of environmental risk regulation, environmental harm therefore is cast as an undesirable by-product of enterprise; its occurrence is acknowledged and duly problematized, yet it is simultaneously marginalized as the unfortunate side-effect of an essentially desirable phenomenon.
The risk regulation paradigm has unquestionably made an enormous contribution to the maturation of environmental legislation. It has normalized the expectation that adverse consequences will at the very least be considered within the regulatory process, that regulatory decisions will be thoroughly informed, and that scientific expertise will play a key role in the construction of this information.Footnote 38 The risk regulatory model has helped to professionalize regulatory practice through the introduction of interlinked and recursive decision-making protocols, and it can claim considerable success in balancing the drive for innovation in novel products and emerging technologies with the imperative of avoiding a new thalidomide or asbestos tragedy.Footnote 39
Yet, with increasing urgency, the question is posed whether risk regulation is the right tool to confront the global, systemic, and potentially cataclysmic environmental threats we face today.Footnote 40 Risk regulatory practices channel towards itemizationFootnote 41 and micro-managerialism, resulting in environmental governance strategies that rely excessively, if not exclusively, on substance-, product- and process-based standardization. Such practices are unresponsive to the cumulative and compound impacts to which a growth-driven economy exposes ecosystems and tests their tolerance limits.Footnote 42 In practical terms, three industrial installations that all adhere strictly to Best Available Techniques requirements to manage the risks attached to their exploitation may still pollute more than one emissions-billowing dinosaur.Footnote 43 Or, tightening packaging waste treatment standards may still fight a losing battle against rising mountains of landfill if they do not engage with growing levels of packaging production. By the same token, risk regulatory conservation strategies have tended to centre, measure, and monitor individual species and particular components of ecosystems, while paying scant attention to the life scape that needs to support and surround these species for them to survive and thrive.Footnote 44 Unless the state of the environment is considered in the round, sectoral and species-specific interventions are unlikely to make a difference and may even backfire as they exacerbate fragmentation in environmental governance, which in turn increases the risk of displacement rather than abatement of environmental pressures.Footnote 45
Related to risk regulation’s myopia in the face of systemic and cumulative harm are concerns about its essential permissiveness.Footnote 46 Environmental risk regulation is deeply proceduralized and organizes its decision-making process as a product of data-gathering conditions and testing requirements, exposure and public sensitivity measurements, impacts assessments, consultation requirements, and monitoring and review demands. As a result, the regulatory regime assumes the guise of an obstacle course that slows down but does not stop the players.Footnote 47 Where concentrated economic interests are at stake, and the stakeholders have plenty of funding, procedural hurdles can typically be overcome or negotiated. Even within the most exacting and ‘environmentally progressive’ of regulatory frameworks – such as the plan and project development conditions under Article 6 of the EU Habitats DirectiveFootnote 48 or the authorization conditions for the use of substances of very high concern under the EU REACH RegulationFootnote 49 – risk regulation offers an escape hatch through the contextualization of hazards with reference to alleged socio-economic benefits.Footnote 50
In sum, risk-oriented environmental law and regulation have often been criticized for being too focused on the means while overlooking the ends. As Michael Vandenbergh put it, ‘there is no there there’.Footnote 51 Target laws look this criticism square in the face. They signal an acknowledgement that environmental law should not just operate at the margins but that it needs to drive change.Footnote 52 Target laws are an overt admission that the mission of environmental law is at least in part transformative.Footnote 53
3.3. Beyond Obscurity
The third key contribution that target laws can make to environmental governance is that they liberate environmental legislation from its dominant connotations with technicality, obscurity and, even, dullness. Binding, overarching targets that are expressed in a simplified, catchy form – 20-20 by 2020; net zero by 2050; halving waste production by 2060 – engage the public imagination in a way that the heavily proceduralized legislative frameworks of the 1980s and 1990s could not hope to match.Footnote 54 The UK legal provisions for the remediation of contaminated land – which regulate the conduct of clean-up activities but do not mandate their execution beyond a vague exhortation that ‘every local authority shall cause its area to be inspected from time to time’Footnote 55 – will not get pulses racing in the same way as the EU NRL’s commitment to the planting of 3 billion trees by 2030. As Eloise Scotford observed, the legislation-heavy discipline of environmental law has been traditionally underserved by academic and scholarly attention, a neglect attributable at least in part to its reputed dullness.Footnote 56 In a similar vein, newspapers and social media tend to reserve their interest in environmental legal developments for litigation rather than new legislative or regulatory developments.
The stronger curb appeal of environmental target laws may seem a frivolous quality to marshal in their defence, yet it is anything but. Law and regulation need public support to thrive, and such support cannot be fostered in ignorance of their existence or purpose. In the absence of a clear message about the public good in the pursuit of which they are enacted, environmental legislative requirements too easily fall victim to the caricature of pointless red tape, which serves nothing but the sense of self-importance of its administrators. The higher profile of environmental target laws does, undeniably, expose them to correspondingly higher levels of scrutiny and even attack, as illustrated in the recent attempts by the Reform party in the UK to discredit net zero in their campaigning,Footnote 57 but it is argued that the virtues of stronger public awareness outweigh the side-effects. Moreover, recent and successful attempts to water down the provisions of the EU Corporate Sustainability Reporting Directive (CSRD)Footnote 58 and the Corporate Sustainability Due Diligence Directive (CSDDD)Footnote 59 affirm that the absence of targets does not insulate environmental laws from attack.Footnote 60 Indeed, it could plausibly be argued that, instead, their absence reduces the legal framework’s capacity to withstand attack.
4. Understanding the Complexity of Targets in Environmental Law
Targets bestow upon environmental legislation several eminent virtues; virtues which, this article argues, warrant their championing in the face of a gathering backlash against environmentally ambitious lawmaking. At the same time, it is essential that the advocates of environmental target laws remain clear-eyed about the difficulties that accompany their design and successful implementation. Targets are complex, even paradoxical entities. This complexity bleeds into the legal instruments in which they are incorporated and provokes new questions about environmental law’s resilience, its status, its implementation, and its enforceability. Relatedly, the integration of binding and overarching targets in environmental legislation exposes the field to various vulnerabilities which, unless carefully considered and negotiated, could not only strip the measures themselves of their transformative potential, but also corrode the already precarious reputation of environmental law as a meaningful contributor to the pursuit of environmental sustainability. Mindful of these cautionary reflections, the following sections unpack the paradoxical nature of targets and explore its connections with legal and regulatory challenges.
4.1. The Paradoxical Nature of Targets
A target can be defined as ‘a meaningful reference value that expresses a desired operational policy outcome’.Footnote 61 Targets are, therefore, outcome-oriented concepts, directing the reader’s attention to the end goal to be achieved. The inclusion of a ‘meaningful reference value’ furthermore affirms an expectation of quantifiability; whereas goals typically convey general aspirations (‘improved health’), targets are expressed with at least a degree of measurability (‘walking at least 10,000 steps per day’; ‘losing five pounds by Christmas’).
This combination of aspiration and measurability constitutes a first strand of the complexity of meaning conveyed by the term. It positions targets as concepts that straddle the realms of scientific analysis and policy prescription; they are ideas the expression and realisation of which owe as much to political will as to scientific assessment. Piero Morseletto and co-authors correspondingly refer to targets as hybrids and ‘nested concepts’,Footnote 62 terms which both have great affinity with David Guston’s ‘boundary objects’,Footnote 63 situated between two different social worlds and available for use by denizens of either. Just like their predecessor notion of risk – the lynchpin around which the preceding generation of environmental law and regulation was organized – targets as legal and regulatory objects tap into distinctive and competitive sources of legitimation, delivering yet another iteration of the ‘fact and value’ dilemma that pulsates through environmental decision-making.Footnote 64
A second prominent feature of targets is their temporality; they reference an implicit or expressly stated point in the future at which the outcome is intended to materialize. Targets, therefore, are a call to action; they embody the assumption that the required processes and activities will be set in motion to realize the end result. Yet, equally, they constitute an explicit affirmation that this result is not yet due. Paradoxically, targets simultaneously justify action and inaction. In a similar vein, targets may promise longevity while at the same time hinting at their finality, since no target functions without a presumed endpoint beyond which obsolescence beckons.
Thirdly, targets are distinguished by their counter-intuitive simplicity. Considering the enormous technical complexity and the pervasive uncertainty that surrounds the development of credible predictions of how ecosystems will respond to a near-endless variety of combinations of behavioural choices and changes,Footnote 65 the fact that such assessments almost invariably result in nice round numbers, to be achieved by readily memorable deadlines, is almost magically serendipitous. Indeed, just like we rarely resolve to lose 2.7 pounds by 6 November, we would be hard-pressed to find environmental policy targets that seek to reduce pollutant emissions by 17.46% by 21 April 2034. Some instruments do account for uncertainty by indicating a target range rather than a target date – most (in)famously the Paris Agreement,Footnote 66 which allows the global achievement of net zero within no less than a 50-year time span – however, even here, the flexibility is expressed in simple and easily recollected terms, namely, ‘in the second half of this century’.Footnote 67 Moreover, this approach is the exception to the more common profile of environmental targets aiming for a set end-of-year or end-of-decade completion point. Typically, we aim for ‘20-20 by 2020’; 20% of land and sea areas covered by restoration measures by 2030; net zero by 2050.
Simplicity undoubtedly aids communication and thereby vitally helps to lodge the target in the public consciousness which is, in turn, key to its acceptance.Footnote 68 Incorporated within an authoritative text such as a legal document, the target fulfils what Emma Lees and Ole Pedersen would qualify as a ‘performative’ function; it serves as a rallying point around which support for the law can be marshalled and organized.Footnote 69 Yet this accessibility, too, has a paradoxical quality. The roundness of the numbers helps diffusion but simultaneously elevates the target to a level of abstraction that disconnects or ‘disembeds’ it from the intensely specific and material reality on which it seeks purchase. Commentators have alluded to this disconnection when qualifying the ‘well below 2°C’ target of the Paris Agreement as a ‘disembedded object’.Footnote 70 By the same token, the smoothness of round-number targets gives them a degree of impenetrability and, even, opacity. It is an invitation to internalize, yet simultaneously works as a thinly veiled reference to the chasm between those ‘in the know’, who were part of the intricate, messy, and often fractious interplay of science and policy that fed into the practice of target-setting, and those on the outside, the externalized public, which is but a passive recipient of a smooth, sanitized end product that deflects interrogation and defies deconstruction.Footnote 71 From this vantage point, the simplicity of the target could undermine its benchmarking role and instead deliver an implicit justification for the exercise of executive discretion in its interpretation, in its pursuit and its achievement.Footnote 72
4.2. What Does This Mean for Target Laws?
Catalytic yet also permissive of procrastination, bestowing while rationing time, in equal measures accessible and impenetrable; even on the briefest of reflections the conceptual complexity of targets rushes into view, as do the many paradoxes fuelled by their duality. Consequently, when environmental legal frameworks incorporate targets and centre them as the focal point of the regulatory enterprise, they inescapably import a high degree of complexity and a potential for dysfunction into the legal system. To reap the benefits of targets, it is therefore essential to be alert to the possible pitfalls and challenges their operationalization will entail. The following section identifies several of the key challenges, some of which have already manifested in our experience with target laws, and others which can be anticipated in the light of the paradoxical dynamics that accompany the determination and pursuit of targets.
5. Confronting the Challenge of Environmental Target Laws
In the light of their complexity and paradoxical qualities, the effective deployment of targets in environmental law requires careful consideration of the temporality, the legal status, the implementation, and the enforceability of target laws. The next paragraphs discuss each in turn.
5.1. The Temporality of Environmental Target Laws
The first challenge to the effectiveness of target laws flows from their temporality. As illustrated earlier, environmental target laws typically set medium- to long-term deadlines, which offer a welcome promise of steadfastness and a commitment to the mission beyond single electoral cycles and towards future generations.Footnote 73 Yet, every deadline is also the herald of an ending. Target laws broadcast their finality – the point beyond which, for all intents and purposes, they will become obsolete. This finality becomes even more prominent where legislation mandates the adoption of interim targets as stepping stones towards the overall outcome, as in the case of, for instance, EU and UK climate change mitigation law. The perspective may be long-term but in practice legislation is experienced as a rapidly changing sequence of short-term aims and deadlines.
The long-term yet time-limited character of target laws poses an obvious governance challenge. Once the deadline hovers into view, target laws either need to be amended and restocked with new, possibly more advanced objectives and deadlines, or they will obsolesce. The turbulent history of the Kyoto ProtocolFootnote 74 offers an apt illustration of the distinctive pressures introduced by target laws: its incorporation of a 2012 deadline immediately channelled the attention of the international community towards the need for its eventual replacement.Footnote 75 The subsequent failure to adopt a follow-up ‘Kyoto II-style’ document at the 2009 Copenhagen climate summit created an imminent legal crisis,Footnote 76 which was patched up only when the signatory countries to the Kyoto Protocol met in Doha (Qatar) in December 2012, and in extremis agreed to effectively extend the Protocol until 2020 by means of a new round of emissions reduction targets.Footnote 77 Since then, the Protocol has been practically superseded by the 2015 Paris Agreement,Footnote 78 which arguably got around the deadline problem by replacing a fixed completion point with a performance objective (global peaking as soon as possible) combined with a longer-term, more flexible achievement period spanning 50 years (global net zero in the second half of this century). However, this more flexible framing offers but a short-lived reprieve from the temporality of target laws. Once the end of the century draws into view – or less optimistically, once it becomes irrefutable that the ‘well below 2°C’ benchmark has been consummately missed – the Paris Agreement, too, will need to confront its temporality.
5.2. The Legal Status of Environmental Target Laws
Having a firm or semi-fixed deadline within legislation poses a continuity problem, but it is arguably a manageable one. Provided the target date is set far enough into the future, updating, transition, and renewal plans can be devised ahead the deadline and legal limbo may be averted. Most contemporary environmental target laws – including the EU’s European Climate LawFootnote 79 and similar legislation in jurisdictions ranging from Canada to Aotearoa New ZealandFootnote 80 – have a time horizon of 2050 or beyond, affording enough space to anticipate and act upon the need for updating. The long-term perspective of most environmental target laws, however, invites a countervailing set of legal controversies. It significantly raises the stakes in the consideration of the legal validity of target laws, elevating them to a quasi-constitutional legal status while at the same time – and, again, paradoxically – jeopardizing their legitimacy. Here is how that works.
Target laws explicitly intend to bind future governments. Indeed, their ability to do so is considered one of their greatest strengths. Yet the future-oriented nature of target laws equally creates a ‘dead hand’ dilemma. Questions have been asked, in countries including the UK and the US,Footnote 81 about the appropriateness of the government of the day using its legislative influence to bind the hands of its democratically elected successors. The stock response to such objections is that dead-hand concerns typically should arise only over constitutional provisions,Footnote 82 not in the context of legislative acts which may be overturned through the same processes and by virtue of the same authority as those that gave them life. If a successor government wants to change course from the targets and timelines set out in pre-existing legislation, it is at liberty to propose the amendment or repeal of the offending law. Still, laws are undeniably resilient. The time, resources, opportunity costs and political costs involved in scaling back environmental protection targets may act as persuasive deterrents to change, even if under clean-slate conditions the government of the day would have signed up to a very different set of commitments from those adopted by its predecessor. The endurance of the 2008 UK Climate Change Act,Footnote 83 adopted under a Labour government and a frequent thorn in the side during the subsequent 14 years of Conservative rule,Footnote 84 is a case in point.Footnote 85 Hence, notwithstanding the formalist rebuttal, long-term target laws remain vulnerable to allegations of democratic illegitimacy.
The future-oriented character of target laws thus courts controversy, but equally we see it used as a justification to harness and elevate their status above that of ‘ordinary’ law. Commentators such as Aileen McHarg assert that legal measures which are specific about what must be achieved into the future might qualify as constitutional.Footnote 86 Whether this position is persuasive and what would be its ramifications – issues that are further complicated in the UK context by the absence of a codified constitution – are both questions that need and deserve much more detailed investigation and debate than can be afforded within the confines of this article. The intention here is not to delve into this discussion, but simply to underline that target laws invite these new and challenging lines of inquiry. Similarly, the long-term perspective of target laws raises the question of whom should be considered as their intended beneficiaries. Laws such as the EU NRLFootnote 87 set out to achieve goals that are relevant for present but even more so for future generations. A case could be construed that their existence represents an implicit acknowledgement that the state has a responsibility not only towards present but also towards future generations.Footnote 88 Conceivably, target laws could therefore be a conduit towards firming up future generation-based claims in the context of state responsibility in environmental and climate litigation. Where states fail to achieve their long-term binding targets, the parties most aggrieved, and most entitled to judicial vindication, may be yet unborn.
To conclude, the temporality of target laws invites a wealth of questions about their legal status, ranging from the residual legal validity of binding instruments that have exceeded the deadline to the legal quality of target laws as potentially constitutional, and the controversies this entails. Each of these questions requires careful consideration and management for environmental target laws to achieve the requisite resilience, clarity, and predictability in support of their claims to legitimacy.
5.3. The Implementation of Environmental Target Laws
The duality of targets as both catalyzing and potentially paralyzing mechanisms challenges the effectiveness of target laws. Maria Lee, for one, has displayed a keen awareness of the dangerous lure of targets as an alternative for instead of a call to action, or, as she beautifully put it, the ‘rhetorical elision of things to which we aspire with things that we have already achieved’.Footnote 89 Along similar lines, Emma Lees and Ole Pedersen have highlighted the flipside of the symbolic resonance of legislation that explicitly commits itself to a formally binding target: if targets are not operationalized, the laws in which they are embedded are reduced to empty gestures that conjure up a promise of action never to be fulfilled.Footnote 90 Instead of fuelling action, performative deadlines serve to suspend governmental accountability and become a justification for inaction, leaving environmental governance in a more precarious state than before their enactment. At worst, they function as a smokescreen behind which administrative capacity is consciously eroded and dismantled.Footnote 91
The risk that long-term targets may inspire purely performative behaviour becomes all the greater when the legislation itself requires that future generations of implementation become progressively more ambitious. In such circumstances, distant deadlines easily become convenient hosts for hubristic expectations of future ingenuity. We have seen this risk materialize in the context of climate change law.Footnote 92 For example, the initial carbon budgets set out in the German Federal Climate Protection Act,Footnote 93 in compliance with the EU’s 2050 net zero target, reflected an arguably excessive faith in exit velocity, as it anticipated the lion’s share of mitigation efforts to be made in the 2030–2050 period. The backloading was so pronounced that the Act was deemed to infringe Article 20A of the German Basic Law (Grundgezetz), which requires the state to protect ‘the natural foundations of life and animals’ while being ‘mindful of its responsibility towards future generations’. According to the Bundesverfassungsgericht, the German Federal Constitutional Court, Germany’s relatively relaxed emissions reduction target of 55% by 2030, as enshrined in legislation, constituted a form of ‘advance interference’ with the ability of future generations to exercise their fundamental rights, and was therefore unconstitutional.Footnote 94
In sum, to avoid environmental target laws devolving into performative grandstanding, they need to be supported by a developed, well-organized and functional infrastructure of implementing and supporting measures.Footnote 95 As a consequence, although they are often presented as gratifyingly straightforward alternatives to the dense technicality of risk-oriented environmental legislation, target laws stimulate a voracious appetite for proceduralization and technocratic governance. Lavanya Rajamani affirms as much when she describes the 2015 Paris Agreement – in many regards the epitome of an environmental target law – as a development in which ‘the climate regime took a decisive turn towards procedural obligations’.Footnote 96
The more general the target, the more extensive the fleet of procedural requirements and detailed, technical prescriptions that must follow in its wake.Footnote 97 To be operationalized, long-term and systemic targets need to be disarticulated into a near-endless combination of sectoral objectives, plotted across a variety of shorter and medium-term timelines, and linked together into a sprawling network of implementing laws, regulations, and administrative provisions. These, in turn, need to be buttressed by funding mechanisms, capacity-building initiatives, public–private cooperative agreements and guidelines, to name but a few components of the gargantuan governance infrastructure that is required to bridge the distance between the target and its achievement.Footnote 98 Every single one of these steps relies on the specification of standards and procedures.Footnote 99
Target laws, therefore, are no antidote to technocracy or bureaucracy. In fact, their presence invites ever denser layers of proceduralization. To generate the cumulative data that will enable an assessment of progress towards the overall end goal, target laws require the development and normalization of data-gathering and measurement methodologies and practices, as well as assessment, reporting, and verification protocols.Footnote 100 Each of these protocols and practices are, again, expressed by means of technical and procedural requirements. If an environmental target is set at a transnational level and its achievement requires contributions from various jurisdictions, as is the case for the EU climate change and nature restoration targets, such data-gathering, monitoring, verification and assessment procedures, moreover, must be replicated across different governance levels.Footnote 101 Thirdly, any successful achievement of systemic environmental targets is premised on the support delivered by procedural prescriptions to ensure that considerations pertaining to the target are integrated into all aspects of economic decision-making.Footnote 102 Fourthly, the level of public buy-in required to safeguard the continuous and sustained pursuit of targets necessitates the introduction and maintenance of robust procedural entitlements that keep open lines of communication with the public.Footnote 103 Taken together, the preconditions for the successful pursuit of environmental targets thus demand an extraordinary investment in standard-setting and proceduralization.
To get a sense of the procedural density of target laws, we need look no further than the 2024 EU NRL.Footnote 104 The substantive targets – at least 90% of European land and marine habitats currently not in good condition to be covered by restoration measures by 2050, with intermediate targets of 30% by 2030 and 60% by 2040;Footnote 105 ‘no net loss’ of urban green space by 2030, and an increasing green urban trend from then onward;Footnote 106 a reversal of the decline of pollinators by 2030 followed by an upward trend thereafter;Footnote 107 three billion additional trees by 2030Footnote 108 – receive pride of place in Chapter II of the EU NRL. Yet procedural and technical requirements swiftly follow in their wake. For example, Article 4(8) of Chapter II requires that Member States make determinations about the areas most suitable for restoration on the basis of ‘the best available knowledge and the latest scientific evidence of the condition of the habitat types’ and ‘making use of information reported under Article 17 of [the Habitats DirectiveFootnote 109 ] and Article 12 of [the Birds DirectiveFootnote 110 ]’,Footnote 111 thus mapping the procedures through which Member States develop their restoration plans. Article 4 further stipulates that Member States need to ensure, by 2030, that the condition of at least 90% of relevant habitats is known, rising to 100% by 2040. This injects data production, collection and reporting requirements into the context of Chapter II. So, too, does Article 9, which requires Member States to ‘make an inventory of artificial barriers to the connectivity of surface waters and, taking into account the socio-economic functions of the artificial barriers, identify the barriers that need to be removed to contribute to meeting the restoration targets set out in Article 4’. Article 10 on the restoration of pollinators, in turn, reminds us that meaningful data-gathering is itself premised on methodological standardization, as it empowers the European Commission to adopt binding measures to establish and update ‘a science-based method for monitoring pollinator diversity and pollinator populations’, which method will become the standardized approach for annual data collection. Article 6 requires that decisions on derogations from the restoration obligations set out in Chapter IIFootnote 112 are made in the light of either a strategic environmental assessment or an environmental impact assessment, further linking substantive goals to an extensive procedural infrastructure.Footnote 113
The markers of intense proceduralization are all the more striking because they are found in Chapter II, the very section of the EU NRL that is intended to be dedicated to the substantive goals of restoration. Subsequent chapters only add to the procedural and technical density of the NRL. Moreover, EU-level procedural and technical requirements are but the tip of the implementation iceberg as every Member State, in turn, will need to develop an extensive regulatory and supporting infrastructure to keep the EU NRL’s mission on track. The assembled image forcefully drives home the message that preventing environmental target laws from devolving into performative grandstanding will be a deeply labour- and resource-intensive task that will summon all the regulatory, technical, and coordinative capacity that governance can muster.
5.4. The Enforceability of Environmental Target Laws
Arguably, the strongest appeal of target laws is that they deliver an accessible and measurable benchmark against which performance over time can be assessed: if, by 2050, Canada has achieved a balance between its GHG emissions and removals, then it may be assumed that the state has lived up to its responsibilities under its Net-Zero Emissions Accountability Act.Footnote 114 Successful achievement of the target, or the lack thereof, could be said to constitute a much more meaningful indicator of the effectiveness of environmental legislation than more commonly used alternative yardsticks, such as the number of environmental licences issued, the number of infractions recorded or the severity of the penalties imposed; exercises which, according to Vandenbergh, amount to little more than ‘bean counting’.Footnote 115 Relatedly, provided they are sufficiently ambitious and transformative, target laws should eliminate the possibility of combining a solid track record for legal and regulatory compliance with continuing environmental degradation, a prospect that remains plausible for laws that reflect a purely risk-oriented approach to environmental regulation.
Although the deadlines in many contemporary environmental target laws are still some years off, we have already witnessed some encouraging cases of interim targets shaping enforceability and governmental accountability.Footnote 116 In the UK, for example, the requirement to determine five-yearly mitigation targets and accompanying carbon budgets in pursuit of net zero by 2050 emboldened its famously deferential judiciaryFootnote 117 to determine in 2021 that the sixth carbon budget of the (then) Department for Business, Energy and Industrial Strategy (BEIS) was unlawful as BEIS had failed fully to quantify the contribution of each policy and proposal towards the budget.Footnote 118
In the light of enhanced measurability of state performance afforded by quantified targets with identifiable deadlines, the possibility has moreover been mooted that the adoption of legally binding targets alters the very nature of state responsibility for climate action and environmental protection. Arguably, the obligation to meet the target could be construed as an obligation of result, rather than as one of effort.Footnote 119 After all, what is the point of having a legal target if it is not to be used as a benchmark against which can be assessed whether the state has met or has failed to comply with its legal obligations?Footnote 120 From this vantage point, target laws could bypass the need for knotty considerations of what constitutes a lawful level of effort in pursuit of public policy goals, and from which combinations of deliberations and actions such effort can be inferred. Instead, all that is required is an objective assessment of performance at the deadline, delivering a binary result.
Binding targets therefore promise better enforceability and state accountability for the performance of environmental law and regulation. However, here too the superficial simplicity of the target belies the complexity of the challenges that must be overcome to ensure that the virtues of target laws are effectively harnessed. A first qualifier is that an outcome is an effective performance gauge only if it is genuinely, rather than only presumably, measurable.Footnote 121 As suggested earlier, the ‘round number’ quality of environmental targets fosters a sense of straightforwardness and ease of application that rarely bears out in practice. The Indian National Forestry Policy offers a telling example. The target of having one third of the country under forest cover was adopted in 1952.Footnote 122 Yet only in the 1990s was sufficient information available to determine with a high degree of reliability how much of the country actually was under forest cover. Until then, it could not be said with certainty whether and to what extent achieving the forestry target would require afforestation, a maintenance of the status quo, or instead might still permit further deforestation.Footnote 123 By the same token, any expectation that it will be self-evident whether, for instance, Japan has hit net zero by 2050, or whether the EU is three billion trees richer by 2030,Footnote 124 is bound to prove devastatingly naïve as the ascertainment of these outputs inevitably will be beset by uncertainty and controversy.Footnote 125
Secondly, even if the output proves measurable, the proposition that this transforms state responsibilities from conduct- to result-based is contested. A result-based interpretation may align with the quantifiability of targets but conversely is difficult to square with their quintessentially aspirational character. The 2024 KlimaSeniorinnen judgment aptly illustrates the dilemma. In its decision, the European Court of Human Rights (ECtHR) unequivocally affirmed that Member States to the European Convention on Human Rights (ECHR)Footnote 126 have a legal responsibility to adopt binding emissions reduction targets. This responsibility falls beyond the margin of appreciation afforded under Article 8 ECHR (right to privacy).Footnote 127 Yet the Court continued that determinations whether Member States have complied with the obligation should be steered by, inter alia, ‘[whether] domestic authorities have had due regard to the need to adopt … a target timeline’ and ‘[to] act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures’.Footnote 128 The reference to ‘due regard’ suggests that, according to the ECtHR at least, compliance assessments are to be guided by effort rather than result.
Beyond the ECHR’s treatment of climate mitigation targets, a review of national and European environmental target laws does little to settle the matter. Some legislation, such as the 2022 Australian Climate Change Act,Footnote 129 bypasses the question by omitting any reference to state responsibility: ‘Australia’s [GHG] reduction targets are as follows …’.Footnote 130 Other measures allude more overtly to either an effort- or result-based framing. The EU NRL, we recall, does not bind EU Member States to achieving restoration of 90% of habitats by 2050, but merely to putting in place the measures required towards this goal.Footnote 131 On the target of three billion trees, Article 13(1) NRL provides that ‘Member States shall aim to contribute to the commitment of planting at least three billion additional trees by 2030 at Union level’.Footnote 132 Yet, on the other hand, Article 8(1) NRL requires Member States to ‘[ensure] that there is no net loss in the total national area of urban greenspace and of urban tree canopy cover in urban ecosystem areas’,Footnote 133 and Article 10 stipulates that ‘Member States shall, by putting in place in a timely manner appropriate and effective measures, improve pollinator diversity … at the latest by 2030’.Footnote 134 The latter phrasing suggests that the efforts, which take centre stage in Article 4, are to be viewed as subordinate relative to the result to be achieved; however, they do so with insufficient resolve to dispel ambivalence.
Even where state responsibility is couched in explicitly result-oriented terms – as in the UK Climate Change Act, which affirms that ‘[it] is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline’Footnote 135 – different views persist on the quality of this obligation.Footnote 136 In his written evidence to the Parliamentary Joint Committee on the Draft Climate Change Bill, Christopher Forsyth asserted that the duty in the (then) Climate Change Bill to reduce GHG emissions with 60% from a 1990 baseline by 2050 was not ‘owed to any particular person or class of individual or body or class of body’.Footnote 137 He continued that ‘[s]uch duties, notwithstanding their appearance in statutes, should be seen as imposing political not legal duties’ and, for good measure, referred to his own textbook, which stated on the matter of legislated targets that ‘[o]nly in the unlikely event of its making total default would [an authority] be at risk of legal compulsion in respect of its general duties’.Footnote 138 At most, the presence of a binding target could be interpretated as requiring the Secretary of State to use their best endeavours.Footnote 139 Colin Reid, on the other hand, argued that one of the main innovations of the Climate Change Act was its introduction of so-called ‘outcome duties’, which go beyond the responsibility to endeavour to achieve a particular result.Footnote 140 At the same time, however, he acknowledged that UK courts have been reluctant to recognize outcome duties as imposing absolute obligations and that such duties ‘are unlikely to be amenable to direct enforcement’.Footnote 141 Hence, a formal recognition of legislated targets as engendering an obligation of result may not necessarily guarantee their justiciability.
To recap, targets may not be as measurable as assumed and, even if they are, this measurability may not translate into effective result-based accountability. Thirdly and finally, it is not a foregone conclusion that a full-throated endorsement of targets as binding obligations of result, even if it were feasible, would be desirable. Doing so might drive down the level of ambition to which governments are willing to commit. Trade-offs between high ambition and broad acceptability are a staple of environmental law and policy, and it remains an open question which pathway delivers the highest level of environmental quality in the long run.Footnote 142 Moreover, lessons from New Public Management remind us that single-minded dedication to the target often comes at a price because other public values may be sacrificed for its achievement.Footnote 143 In a context of decarbonization and environmental restoration, opportunities for tunnel vision and short-sighted trade-offs are rife. For example, the pressure to hit the target could push policymakers towards faster but less environmentally sustainable carbon mitigation options. Or, a target of three billion trees might steer public authorities towards hardier, low-maintenance varieties that contribute less to biodiversity. Relatedly, we might question whether conservative targets should be treated as accommodating the same margin of error in their achievement as ambitious ones, or whether there is cause for differentiation. In the latter case, how should the cut-off point between ambitious and conservative be determined? Each of these questions adds a further layer of complexity and will require careful reflection for enhanced measurability to become a stepping stone rather than a stumbling block on the path to state responsibility for climate change.
6. Conclusion
Considering the litany of challenges that have been identified, readers might be forgiven for thinking that this article has come to bury environmental target laws, not to praise them. To capitalize on their transformative potential and safeguard target laws from sliding into performative emptiness, a deep and sustained investment in supporting and implementing infrastructure will be essential. Moreover, their successful operationalization will hinge on legislative bodies diligently planning ahead of anticipated deadlines to secure their effective endurance or renewal. By the same token, legal, regulatory, and judicial authorities will need to arrive at a considered position on the legal status of and the state’s accountability for binding targets so that target laws maintain an acceptable balance between environmental effectiveness and democratic legitimacy.
Yet to conclude on this basis that environmental target laws are not worth the effort, and that the energy required to champion them in the face of a growing backlash is better spent elsewhere, would be a grave mistake. For all their vulnerability to dysfunction, binding targets offer to environmental legislation a level of drive, resilience, and visibility that traditional risk regulatory instruments cannot match. In the face of accelerating climate breakdown and impending ecosystem collapse, and in the absence of ready alternatives that would somehow enjoy all the qualities of target laws without inviting any of their drawbacks, sacrificing potential on the altar of perfection would be a strategic calamity.
Furthermore, even if target laws are likely to reconfigure rather than fix problems, there is hope in this very act of reconfiguration. The reconfiguration of problems through the filter of target laws allows for the identification and reframing of issues that may otherwise remain hidden or ignored. In this sense, environmental target laws can create space for new forms of dialogue and reflection that may yet lead to more nuanced, adaptive approaches to environmental governance. Hence, while the paradoxes surrounding targets highlight the complexities involved, they also provide a critical opportunity for reassessing and recalibrating the paths forward in the face of pressing environmental crises. It is up to legal communities to take up the gauntlet, work through the difficulties, and keep the quest for imperfect improvement going.
Acknowledgements
I would like to thank two anonymous reviewers and the participants in the ‘Living Environmental Law’ conference at Wageningen University (The Netherlands, Apr. 2024), the London School of Economics (LSE) staff seminar (London (UK), Nov. 2024), and the LSE-Bar-Ilan University workshop on ‘Making Climate Law Work: Moving from Commitments to Results’ (London (UK), Feb. 2025), for their insightful comments on earlier iterations of this article.
Funding statement
Not applicable.
Competing interests
The author declares none.
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