[LUM#16] “You’ve never seen a flamingo in court before.”
What tools does French law currently offer to protect the interests of natural elements such as rivers and streams, or even trees or flamingos? What compensation can be claimed in the event of pollution? And, moreover, can compensation still be considered a solution? Catherine Ribot, professor specializing in environmental law and researcher at the CREAM administrative research and study center in Montpellier, provides some answers.
What is the place of environmental protection in French law?
Today, we have an anthropocentric culture of the environment. We are at the center of it: you, me, humans. Let me give you an example: you are on a mountain road, a tanker truck overturns and leaks highly toxic products. There are herds of cattle nearby, and the cows die; there are vegetable gardens, and there is no more salad; there is an orchard, and there are no more fruit trees. Worse still, 10 km below, there is a drinking water catchment that is at risk of contamination. What should be done?
I imagine it needs to be cleaned up?
Of course, because it's dangerous! Dangerous for cows, for lettuce, for fruit trees, and maybe even for me, since the water I drink in the morning could be contaminated. Now imagine that the toxic substance is lodged in a non-porous clay geological pocket. Will we clean it up? No, because this pollution does not harm anyone's interests. This is an expression of an anthropocentric view of the environment and pollution.
What is the legal definition of pollution?
Pollution is damage to a person's property. In the case of an oil spill, for example, bird protection associations have sought compensation for the costs incurred, while local authorities are seeking compensation for the decline in tourism...
You have never seen a flamingo in court seeking compensation for damage caused to it by pollution in the pond where it lives. This flamingo may be the only survivor of its flock of flamingos after an episode of pollution. How do we recognize damage that is not just compensation for the cost caused by this pollution, but compensation for the cost suffered by the environment?
Has the law changed on this point today?
It has been complicated, but ultimately Article 4 of the Law of August 8, 2016, on the restoration of biodiversity, inserted new provisions into the Civil Code providing for the existence of ecological damage and affirming that this must first be repaired in kind. This requires, although it can still be criticized, a different relationship with the environment.
But then who can file a claim for compensation on behalf of the flamingo?
An association, for example, will be able to claim compensation for this damage. There is a lot of talk about this at the moment, not so much about water but about climate litigation with "The Case of the Century"...We are also seeing a shift with the first states recognizing the rights of natural elements. 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 has legal standing. You have legal standing, I have legal standing, we can seek compensation for damages caused to us. In France, a tree does not have legal standing. A tree may belong to you, it is part of your property, and as such, you can seek compensation if it suffers damage. The tree itself is not a legal entity; this is not part of 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 may consider the Lez to be part of their heritage, but technically and legally, this does not support a legal action. 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, a species that is now extinct. The hunter who killed her may be able to call on his insurer, but what costs will be reimbursed, what damage will be repaired? When three tons of fish are found dead due to pollution, is everything settled once the banks have been cleaned and the waterway restocked? Perhaps damage to the integrity of the water cannot be summed up in the payment of compensation or restocking. It is a social issue that perhaps needs to be considered differently.
So it's more a question of awareness than of rights?
There are legal instruments and protective mechanisms in place, but we haven't fully developed our awareness of the issue. Today, this logic is beginning to shock younger generations, who believe that compensation alone is not enough. These new generations will find ways to enable us to think differently. The law will change, and so will lawyers.
*CREAM – Montpellier Center for Research and Administrative Studies (UM)
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