By Michael Green

With the Biodiversity Law n°2016-1087 of August 8, 2016, the French Civil code now formally recognises “ecological prejudice” (préjudice écologique) as a category of indemnifiable damage. The move is symbolically significant and builds on the recognition of this category of damages by the Court of Appeals of Paris on March 30, 2010 in the 1999 Erika shipwreck matter (which resulted in pollution of over 400km of the French Brittany coastline).

The legal recognition of ecological prejudice can be traced to the Court’s landmark ruling, in which it was decided that “the ecological prejudice resulting from damage to non-mercantile environmental assets shall be compensated by monetary equivalent”. It further defined the matter as an “… objective prejudice … [which] is to apply to any non-negligible harm to the natural environment, that is, to the air, the atmosphere, water, soils, earths, landscapes, natural sites, biodiversity and the interactions between these elements, which may carry no repercussion for any specific human interest but affects a legitimate collective interest”.

Given its existing recognition by the Court, the importance of the legislative recognition of ecological prejudice lies in the legal policy choice made to organize and secure the actual and effective remediation of ecological harm, on the one hand, and the balancing of interests between the need to protect the environment and the imperatives of economic development and social progress, on the other. As such:

  • Article 1246 affirms the principle of remediation of ecological prejudice: “Any person responsible for ecological prejudice is liable for the remediation thereof”.
  • Article 1247 affirms that only non-negligible ecological prejudice is relevant. This leaves room for interpretation, but should prevent the courts from being flooded with minor claims.

The recognition of ecological prejudice is further supported by a broadly defined standing provision, as Article 1248 allows for, “The State [Etat], the French Biodiversity Agency, local authorities and their associations which territories are impacted, their public institutions, as well as associations approved or created for more than 5 years before the commencement of the proceedings and which purpose is the protection of nature and the preservation of the environment, shall have standing and interest to act to file actions on ecological prejudice compensation grounds”.

As far as compensation is concerned, legislators provided that: “…the compensation of ecological prejudice shall be effected, as a priority, in nature. Where legally or factually impossible, or where compensation measures are insufficient, the judge shall sentence the responsible party to pay damages which shall be allocated to the remediation of the environmental damage, to the claimant or, where the latter is not able to take adequate measures to this end, to the State”. Although the obvious intent here is to ensure actual environmental remediation, this approach may prove to be very complex to implement in practice in cases, for example, where the relevant damage occurred long before the sentence is entered against the defendant.

Finally, the maximum time during which ecological prejudice actions may be brought is 10 (ten) years from the day the claimant knew or should have known of the manifestation of the ecological prejudice.

Establishing “pure” ecological prejudice as a new breed of cause of action, clearly sets it apart from other – more traditional – causes of action which have been predicated upon harm to the environment, but where the environment was the media rather than the “victim” (i.e. causes of action, such as economic prejudice, aesthetic prejudice, moral prejudice and anxiety prejudice). This reform is also welcome in that it clarifies standing and relief conditions, which brings additional legal certainty. The potential additional burdens imposed on some stakeholders through this reform (such as project developers), should be balanced to some extent as actions will need to be based on “non-negligible” harm to the “natural” environment, which should limit the uncontrolled development of legal action on these new grounds.

Also, by virtue of ecological prejudice being governed pursuant to the Civil Code, compensation obligations are therefore limited to private entities (since the liability of public entities is not covered by Civil Code provisions). This does not mean that public entities are exonerated, but does entail a risk that ecological prejudice case law arising out of civil courts may differ from similar cases heard in the administrative courts.

This post was prepared with the assistance of David Desforges from Desforges Law.