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Attorneys: Is soil the new gold? Soil protection is becoming a key factor in land development
Attorneys: Is soil the new gold? Soil protection is becoming a key factor in land development
Developers, planners and local governments will soon face a new challenge – soil protection. The Soil Monitoring Law will be transposed into Estonian law in 2028 and will introduce a range of new restrictions and obligations, write attorneys Sandra Kaas and Villy Lopman from RASK Attorneys-at-Law.
The Soil Monitoring Law establishes a common legal framework for the protection and monitoring of European soils. It does not apply solely to agriculture but covers both soil health monitoring and sustainable soil management, as well as broader land use. Let's take a closer look at how this affects development and planning, both in urban and rural areas.
In short, if a development project threatens the soil's ability to provide ecosystem services at a given location, an alternative location must be considered. These services range from providing nutrients to plants and regulating water supply to controlling erosion, biodiversity, environmental pollution, and carbon sequestration. If these are at risk, development cannot proceed, or compensatory measures must be implemented. One of the law's goals is a step-by-step approach – directing land take towards already developed areas before new, natural land is used. Simply put, development on agricultural and natural land will be considerably more difficult and heavily restricted in the future.
Good soil health helps prevent its degradation, erosion and loss of organic matter, and protects biodiversity and human health. Unsustainable land use, including the sealing of land with artificial surfaces and soil contamination, has led to serious problems. One visible consequence is the flooding in Central Europe, where damaged soils are no longer able to absorb rainfall.
The current situation is that over 60% of European soils are in an unhealthy state. At EU level, there has previously been no specific legal framework addressing soil, as exists for other ecosystems. That framework has now been created and will begin to influence a wide range of land-use decisions.
Since the Soil Monitoring Law entered into force in December 2025, Estonia has three years to transpose its provisions into national law. Time is running out, and work is already underway. As part of a research and development project to be carried out between 2024 and 2027, Estonia's soil map will be updated, and monitoring of soil and land use, including greenhouse gases and biodiversity, will be taken to a new level. The transposition deadline is 16 December 2028. The first report on the implementation and assessment of soil health in Estonia is expected to be completed by 16 December 2031.
The Soil Monitoring Law requires Member States to establish and implement a soil monitoring system to ensure regular, consistent, and accurate monitoring of soil health, as well as soil sealing and removal. To this end, countries must establish separate soil monitoring regions and units within their territory to plan and report on soil health monitoring. States must also identify potentially contaminated sites and ensure that risks to human health and the environment are mapped and kept at acceptable levels, including through the implementation of soil remediation measures.
The law provides that where soil sealing or removal takes place as part of land use, new principles must be followed in spatial planning. For example, any reduction in the soil's capacity to provide various ecosystem services, including food production, must be avoided or limited as much as possible. This means using as little new land as possible and giving preference to land already in use.
In addition, sites must be chosen for development where the impact on soil health would be minimal. This means directing developments towards areas with very poor soil health, such as abandoned industrial sites. Agricultural land and natural areas will thereby receive stronger protection than before.
Soil damage must also be compensated going forward. This means that where soil is sealed or removed in one location, it must be compensated for to a reasonable extent elsewhere. This can be done, for example, by removing existing artificial surfaces (concrete, asphalt) or restoring previously damaged areas.
All of this means that in the future, planning a development or building on agricultural or natural land cannot begin until it has been demonstrated that no better alternative location exists, that soil health is damaged as little as possible, and that, where no alternatives are available, damage to the soil is compensated.
Although the Soil Monitoring Law focuses on improving soil health and establishing a monitoring system, it will in future significantly affect spatial planning and the implementation of development projects.
In practice, this means that developers, local governments and planners will need to take soil protection objectives into account from the earliest stages of projects. This will require more preparatory work and analysis of soil health; planning and financing compensatory measures where necessary; and cooperation with national and local authorities to identify compensation sites.
In summary, soil protection requirements concern everyone – current and future property owners, developers and local governments alike. A new layer of obligations – similar in nature to the green network framework – will emerge, affecting spatial planning, property prices, the duration of proceedings and the value of existing plans. All of these issues should be addressed today.
The Soil Monitoring Law establishes a common legal framework for the protection and monitoring of European soils. It does not apply solely to agriculture but covers both soil health monitoring and sustainable soil management, as well as broader land use. Let's take a closer look at how this affects development and planning, both in urban and rural areas.
In short, if a development project threatens the soil's ability to provide ecosystem services at a given location, an alternative location must be considered. These services range from providing nutrients to plants and regulating water supply to controlling erosion, biodiversity, environmental pollution, and carbon sequestration. If these are at risk, development cannot proceed, or compensatory measures must be implemented. One of the law's goals is a step-by-step approach – directing land take towards already developed areas before new, natural land is used. Simply put, development on agricultural and natural land will be considerably more difficult and heavily restricted in the future.
Why is soil being protected?
Good soil health helps prevent its degradation, erosion and loss of organic matter, and protects biodiversity and human health. Unsustainable land use, including the sealing of land with artificial surfaces and soil contamination, has led to serious problems. One visible consequence is the flooding in Central Europe, where damaged soils are no longer able to absorb rainfall.
The current situation is that over 60% of European soils are in an unhealthy state. At EU level, there has previously been no specific legal framework addressing soil, as exists for other ecosystems. That framework has now been created and will begin to influence a wide range of land-use decisions.
Estonia will begin transposing the new requirements within the coming years
Since the Soil Monitoring Law entered into force in December 2025, Estonia has three years to transpose its provisions into national law. Time is running out, and work is already underway. As part of a research and development project to be carried out between 2024 and 2027, Estonia's soil map will be updated, and monitoring of soil and land use, including greenhouse gases and biodiversity, will be taken to a new level. The transposition deadline is 16 December 2028. The first report on the implementation and assessment of soil health in Estonia is expected to be completed by 16 December 2031.
The Soil Monitoring Law requires Member States to establish and implement a soil monitoring system to ensure regular, consistent, and accurate monitoring of soil health, as well as soil sealing and removal. To this end, countries must establish separate soil monitoring regions and units within their territory to plan and report on soil health monitoring. States must also identify potentially contaminated sites and ensure that risks to human health and the environment are mapped and kept at acceptable levels, including through the implementation of soil remediation measures.
Planning a development or building on agricultural or natural land will become more difficult
The law provides that where soil sealing or removal takes place as part of land use, new principles must be followed in spatial planning. For example, any reduction in the soil's capacity to provide various ecosystem services, including food production, must be avoided or limited as much as possible. This means using as little new land as possible and giving preference to land already in use.
In addition, sites must be chosen for development where the impact on soil health would be minimal. This means directing developments towards areas with very poor soil health, such as abandoned industrial sites. Agricultural land and natural areas will thereby receive stronger protection than before.
Soil damage must also be compensated going forward. This means that where soil is sealed or removed in one location, it must be compensated for to a reasonable extent elsewhere. This can be done, for example, by removing existing artificial surfaces (concrete, asphalt) or restoring previously damaged areas.
All of this means that in the future, planning a development or building on agricultural or natural land cannot begin until it has been demonstrated that no better alternative location exists, that soil health is damaged as little as possible, and that, where no alternatives are available, damage to the soil is compensated.
Soil protection poses challenges for all planning projects
Although the Soil Monitoring Law focuses on improving soil health and establishing a monitoring system, it will in future significantly affect spatial planning and the implementation of development projects.
In practice, this means that developers, local governments and planners will need to take soil protection objectives into account from the earliest stages of projects. This will require more preparatory work and analysis of soil health; planning and financing compensatory measures where necessary; and cooperation with national and local authorities to identify compensation sites.
In summary, soil protection requirements concern everyone – current and future property owners, developers and local governments alike. A new layer of obligations – similar in nature to the green network framework – will emerge, affecting spatial planning, property prices, the duration of proceedings and the value of existing plans. All of these issues should be addressed today.