"You've never seen a flamingo in court".

What tools does French law offer today to protect the interests of natural elements such as rivers or why not a tree or a flamingo? What reparation can be demanded in the event of pollution? And can reparation still be considered a solution? Catherine Ribot, a professor specializing in environmental law and researcher at the CREAM research and administrative studies center in Montpellier, France, provides some answers.  

What is the place of environmental protection in French law?
Today, we have an anthropocentric environmental culture. We are at the center of it: you, me, humans. Let me give you an example: you're on a mountain road, a tanker overturns and leaks highly toxic products. There are herds around, the cows die; there's market gardening, no more lettuce; there's an orchard, no more fruit trees. Worse still! 10 km down the road, there's a drinking water supply at risk of contamination. So what's to be done?

I suppose we'll have to clean it up?
Of course, because it's dangerous! Danger for the cows, for the salads, for the 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 geological clay pocket. Are we going to clean it up? No, because no one's interests are affected. This is the expression of an anthropocentric vision 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 asked for compensation for the costs incurred, while local authorities have asked for compensation for the drop in tourist numbers...

Is ecological damage the damage done to nature itself?
You've never seen a pink flamingo in court claiming compensation for the damage caused to it by pollution in the pond where it lives. This flamingo may be the only survivor of its flamingo cloud after a pollution episode. How can we recognize a loss that is not just compensation for the cost of the pollution, but compensation for the cost to the environment?

Has the law now evolved on this point?
It's been complicated, but finally Article 4 of the law of August 8, 2016 for the reconquest of biodiversity inserts new provisions into the civil code providing for the existence of ecological prejudice and affirming that it must first be compensated in kind. This obliges us to adopt a different approach to the environment.

But who can claim compensation for the flamingo?
An association, for example, will be able to claim compensation for this loss. There's a lot of talk about this at the moment, not so much in relation to water, but in relation to climate litigation with the "Case of the Century"... We're also seeing an evolution with the first states admitting the recognition of rights to natural elements. New Zealand recognized the Whanganui River as a subject of law in 2017. In India, the Ganges has also been granted certain rights...

What exactly is a legal entity?
A legal entity is a subject of law. You're a subject of law, I'm a subject of law, and we can claim compensation for any damage caused to us. In France, a tree is not a subject of law. A tree can belong to you, it's part of your heritage and, as such, you can claim compensation if it suffers damage. The tree itself is not a subject of law, nor is it rooted in our tradition.

What does the notion of "common good" bring to the table?
Article L210-1 of the French Environment Code states that water is part of the nation's common heritage. In practical terms, a citizen may consider that the Lez is part of his or her heritage, but technically and legally, this does not support a legal action. Because, ultimately, what would the citizen want?

Yes, and moreover, 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 no more. The hunter who killed her can, perhaps, call in his insurer, but what costs will he reimburse, what damage will he repair? When three tons of fish are left belly-up because of pollution, has everything been taken care of when you've paid to clean up the banks and re-invigorate the water? Perhaps damage to the water's integrity is not just a matter of paying compensation or re-stocking. It's a social fact that perhaps needs to be seen in a different light.

So it's a question of awareness rather than law?
There are legal instruments and protective mechanisms in place, but our awareness is not yet complete. Today, this logic is beginning to shock the younger generations, who feel that reparation alone is not enough. These new generations will find the means to enable us to think differently. The law will change, and so will lawyers.

*CREAM - Centre de recherches et d'études administratives de Montpellier (UM)