[LUM#16] “You’ve never seen a flamingo in court”
What tools does French law currently offer to protect the interests of natural features such as rivers and streams—or even a tree or a flamingo? What remedies can be sought in cases of pollution? And, for that matter, can compensation still be considered a solution? Catherine Ribot, a professor specializing in environmental law and a researcher at the Center for Administrative Research and Studies in Montpellier ( CREAM), offers some insights.
What role does environmental protection play in French law?
Today, we have an anthropocentric view of the environment. We are at the center of it—you, me, humans. Let me give you an example: you’re on a mountain road, a tanker truck overturns and spills highly toxic chemicals. There are herds nearby; the cows die. There’s a vegetable farm; no more lettuce. There’s an orchard; no more fruit trees. Worse yet! Ten kilometers downstream, there’s a drinking water intake that risks being contaminated. What should be done?
I suppose we need to clean it up?
Of course, because it’s dangerous! Dangerous for the cows, for the lettuce, for the fruit trees, and maybe even for me, since the water I drink in the morning might be contaminated. Now imagine that the toxic substance is trapped in a non-porous clay geological pocket. Will we clean it up? No, because this pollution doesn’t harm anyone’s interests. This reflects an anthropocentric view of the environment and pollution.
What is the legal definition of pollution?
Pollution is an infringement upon a person’s property. In the case of an oil spill, for example, bird conservation groups have sought compensation for the costs incurred, while local governments have sought compensation for the decline in tourist numbers…
Is ecological damage the harm done to nature itself?
You have never seen a flamingo in court seeking compensation for the damage caused to it by pollution in the pond where it lives. This flamingo may be the sole survivor of its flock following an episode of pollution. How do we recognize harm that is not merely compensation for the costs caused by this pollution, but rather compensation for the costs borne by the environment?
Has the law changed on this point today?
It was a complicated process, but ultimately Article 4 of the Law of August 8, 2016, on the Restoration of Biodiversity, incorporated new provisions into the Civil Code recognizing the existence of ecological damage and stipulating that such damage must first be remedied in kind. This necessitates—though one can always criticize it—a different relationship with the environment.
But then who can file a claim for damages on behalf of the flamingo?
An organization, for example, will be able to seek compensation for this harm. There’s a lot of talk about this right now, not so much regarding water but concerning climate litigation with “The Case of the Century”…We’re also seeing a shift as the first countries begin to recognize rights for natural entities. New Zealand recognized the Whanganui River as a legal entity in 2017. In India, the Ganges has also been granted certain rights…
What exactly is a legal entity?
A legal entity is a legal person. You are a legal person, I am a legal person, and we can seek compensation for harm caused to us. In France, a tree is not a legal person. A tree may belong to you; it is part of your property, and as such, you can seek compensation if it is damaged. The tree itself is not a legal entity; this concept is not rooted in our tradition.
And what does the concept of the common good bring to the table?
Article L210-1 of the Environmental Code states that water is part of the nation’s common heritage. In practical terms, a citizen might consider the Lez River to be part of their heritage, but technically and legally, this does not provide grounds for a lawsuit. Because, ultimately, what would that citizen be asking for?
Yes, and besides, how can we determine the value of a common good?
First, we need to define what a common good is. Can an animal be a common good? Do you remember Cannelle the bear? She was the last bear in the Pyrenees; the species is now extinct. The hunter who killed her might, perhaps, call on his insurer, but what costs will the insurer reimburse, and what damages will it compensate for? When three tons of fish wash up belly-up due to pollution, have we resolved the issue simply by paying to clean the riverbanks and restock the waterbody? Perhaps the damage to the integrity of the water cannot be reduced to the payment of compensation or restocking. It is a social issue that must, perhaps, be approached differently.
So is it more a matter of awareness than of the law?
There are legal instruments and protective mechanisms in place, but our awareness hasn’t fully developed yet. Today, this way of thinking is beginning to shock younger generations, who believe that reparations alone are not enough. These new generations will find ways to help us think differently. The law will change, and so will legal professionals.
*CREAM – Montpellier Center for Administrative Research and Studies (UM)
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