Abstract
Agricultural law and environmental law are two distinct branches of law. However, there are common points between the two legal spheres. Agricultural law regulates environmental protection, and environmental law regulates agricultural pollution. This in itself, however, is not a sufficient basis for a coherent legal system around agroecology. Yet there are significant obstacles to the creation of a more coherent legal framework. These obstacles are the very existence of agricultural law, on the one hand, and of environmental law, on the other, according to their construction and development, and also existing rights that might possibly be violated by “agroecological law,” and the lack of consensus for changing the dominant agricultural model. Nevertheless, agricultural law could structure its own legal framework to enable the development of agroecology, despite current opposing provisions. The current bill for the future of agriculture is pointing in this direction.
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- 1.
Agroecology comprises production systems based on the specific features of ecosystems. This may be a variety of methods as defined by law (or not), together with integrated pest management, organic farming or agroforestry.
- 2.
See Circular of 7 July 2008 on the organization of the departmental administration of the State, with regional organization dealt with in the annex.
- 3.
Terré (2009), p. 95.
- 4.
Legal relations between private persons governed by environmental law are now sufficiently numerous that we can challenge the exclusive subordination of environmental law to public law; see Van Lang (2011), pp. 157 et seqq.
- 5.
- 6.
The administrative authorities and judges are not authorized to rule on the issue of building permits by taking into account the definition of agricultural activities under the Rural Code, CE 14/02/2007, req. No. 282398.
- 7.
- 8.
According to which agricultural law regulates agricultural activities, whereas environmental law protects natural areas, species and resources and combats pollution and environmental harm.
- 9.
- 10.
See Aubertot et al. (2005).
- 11.
See Hermon and Doussan (2012), pp. 95 et seqq.
- 12.
Aubertot et al. (2005).
- 13.
This system comprises three texts adopted on 21 October 2009: Regulation 1107/2009/EU of the European Parliament and the Council on the marketing of plant protection products, Directive 2009/128/EU establishing a framework for Community action for a sustainable use of pesticides, and Directive 2009/127/EU amending Directive 2006/42/EC on machinery for pesticide application.
- 14.
Defined by Directive 2009/128/EC as “the careful consideration of all available methods of protecting plants and, therefore, the integration of appropriate measures that discourage the development of pest populations and maintain the use of plant protection products and other types of interventions at levels justified on economic and environmental considerations and reduce or minimise the risk to human health and to the environment. IPM against pests emphasises the growth of a healthy crop with the least possible disruption to agro-ecosystems and encourages natural methods of pest control” (Arts. 3–6, author’s translation).
- 15.
See Hermon and Doussan (2012).
- 16.
The “Ecophyto 2018 reduction of pesticide use from 2008 to 2018” was developed following the Grenelle Environnement Agreement of 2007 and assembled State representatives, local authorities, NGOs, employers and workers, divided into five colleges to discuss environmental issues.
- 17.
A national action plan pursuant to Directive 2009/128/EU.
- 18.
The goal was part of the National Strategy for Biodiversity and recalled since then, the last mention of it being through Law 2009/967 of 3 August 2009 relating to the implementation of the Grenelle Environment Agreement called Grenelle 1, which set the target of halving the use of plant protection products within 10 years (Art. 31).
- 19.
According to Ecophyto’s 2012 annual report, the experimental farming network trying out crops with a lower pesticide intake (the DEPHY farms) includes 1,900 farms and 42 institutions of agricultural education.
- 20.
See Hermon and Doussan (2012), p. 98, note 12. All the quotations in English between “” are author’s translations from French, if not otherwise stated.
- 21.
Contra Bodiguel (2011), according to which there is no guarantee that environmental provisions are prohibited by the public order status of tenant farming.
- 22.
César (2006), p. 185.
- 23.
See Bosse Platière et al. (2013), pp. 57 et seqq.
- 24.
As we will see later, Art. 4 of the bill on agriculture, food and forestry removes these provisions and opens the green lease to any person, anywhere and to any clause. See Sect. 2.2.2, bill passed by the National Assembly on 14 January 2014, doc. Senate, No. 279.
- 25.
For the presentation of talks for Terre de liens, see Cacciabue (2013), pp. 1 et seqq, 13.
- 26.
Art. L. 411-27 of the Rural Code states that the space for which the green lease was made must have been “subject to a formal management document,” which is commonly the case, considering that these “management records” bear different names depending on the areas they apply to, and have different statutes and a separate scope, such as public utility easements within the perimeters of protection of water catchment points, regulation of activities through the decree creating national parks specified by its charter, contracts and programmes of regulatory action in areas subject to green tides, etc. The green lease must comply with the applicable “management document.”
- 27.
An OECD assessment reports that European support to agro-environment represents 23 % of the total budget of the second pillar, but this share is much higher in France, namely around 43 %) (“Evaluation des réformes des politiques agricoles de l’Union européenne”, OECD, 2011, p. 142 and Appendix C, p. 182).
- 28.
Art. 31, Law 2009-967 of 3 August 2009 relating to the implementation of the Grenelle Environment Agreement. Since 2010, aid to the conversion to organic farming and the preservation of organic farming in France fall under the first pillar on the basis of Art. 68 of Regulation 73/2009 of 19 January 2009 establishing common rules for direct support schemes to farmers under the CAP.
- 29.
Between 2007 and 2012, the number of organic farms increased by 104 %, bringing the total number of organic farmers to over 25,000 and the surfaces to 85 %, more than one million hectares, including plots under conversion; see BIO/OC Agency, on the website of the Ministry of Agriculture.
- 30.
According to the classification, amended by Decree 2013-1301 of 27 December 2013. The threshold was formerly set at 450.
- 31.
The smallest farms (up to 150 cows or 450 pigs) are subject to declaration, the largest to authorization and intermediate facilities (450–2,000 pigs or 151–200 cows) to registration.
- 32.
Finally, the orders of 27 December 2013, the first of which refers to the general requirements and to classified facilities subject to declaration under sections 2101 and 2102.
- 33.
Nicolazo and Redaud (2007).
- 34.
See Hermon and Doussan (2012), pp. 303 et seqq.
- 35.
Metropolitan France is divided into six drainage basins, each with its own agency. These are public institutions supervised by the Ministry of Ecology.
- 36.
Irrigation (other than surface irrigation) or surface irrigation, which allows agencies to limit the cost of surface irrigation, more water efficient compared to sprinkler irrigation.
- 37.
The maximum statutory fee is two times higher, depending on whether water extraction is performed in a water distribution zone, that is to say, in an area where the water deficit is structural, or outside such an area.
- 38.
Under the current legislation, the rate of the fee shall not exceed, for irrigation, €0.02 per m3, €0.03 in case of water abstraction in water distribution zones (structural deficit areas), and, for surface irrigation, €0.10 per m3 and €0.15 when collecting water in a water distribution zone.
- 39.
Since 1 January 2009, the failure to indicate this information on invoices makes the offender liable to a fine of approximately 750 euro for a fourth-class offense as defined by Art. R. 213-48-13-IV C. env.
- 40.
- 41.
Pursuant to Art. L. 213-10-2-IV of the Environmental Code, “the charge for a livestock farmer is based on the their number of livestock units and applies to a stock density exceeding 1.4 livestock units per hectare of utilized agricultural area (which excludes the most extensive types of farming). The charge rate is €3 per unit. The minimum amount of livestock for fee collection is set at 90 units and to 150 in alpine areas.”
- 42.
The Law of 3 August 2009 (‘Grenelle 1’) set the objective to “increase energy efficiency in order to achieve a rate of 30 % of farms with low energy dependency by 2013,” Art. 31. Yet according to Marion Guillou’s report on le projet agro-écologique: vers des agricultures doublement performantes pour concilier compétitivité et respect de l’environnement (see Sect. 2.2.2), it is likely that the objective will not be achieved” (Guillou 2013).
- 43.
The bill on agriculture, food and forestry will apply this scheme to plant protection products (see Sect. 2.2.2).
- 44.
See Production agricole et droit de l’environnement, op. cit., pp. 371 et seqq.
- 45.
Coordinated by the InVivo project, national union of agricultural cooperatives, approved 15 May 2012, for an expected service life of five crop years. The project will save approximately 546,403 tons of CO2 per year.
- 46.
The project, led by the Blue White Heart Association, is to introduce this type of cattle feed in 1,000 farms averaging 61 dairy cows over 10 years, with an annual saving of 27,853 tons of CO2. Projects financing the equipment of farming cooperatives meant to reduce energy consumption or the substitution of fossil fuel with renewable energy were also approved. See the website of the Ministry of Ecology (MEDD), under Energy, Air and Climate, greenhouse effect and climate change.
- 47.
See the website of the Ministry of Ecology (MEDDE), under Energy, Air and Climate, Energy savings.
- 48.
See, for example, the Decree of 19 December 2011 on action programmes to implement water protection against pollution by agricultural nitrates. In the context of prelitigation between France and the European Commission, on the application of the “nitrate” Directive of 12 December 1991, the Commission indicated that it considered the nitrogen equivalent standards produced annually by the French livestock sector to be underestimated (Opinion of 2 April 2003 under Art. 228 EC Treaty following the ruling of 8 March 2001 for failure to comply, aff. C-266/991, formal notice of 20 November 2009 stating that action programmes are insufficient in light of the objectives of the Directive); see Hermon and Doussan (2012), pp. 211–212. In response, France issued the decree of 19 December 2011, providing additional evidence as to the amount of nitrogen excreted by dairy cows, so that today, the longer the grazing period is, the higher is the production of estimated nitrogen.
- 49.
- 50.
Pursuant to Art. L. 331-1 of the Rural Code, “the control of farms applies to the development of farmland or to landless production systems, regardless of the status or mode of legal organization thereof, and the capacity whereby the development is carried out.”
- 51.
The prefect is required to reject the lower rank application: cf. CE 22/03/1999 Consorts Craquelin, RDR 2000, p. 54, CE 28/07/1999, Rec. 252.
- 52.
Ruling of the Third Civil Chamber of the Court of Cassation of 27 November 2007, No. 06-20.172. Ruling of the Third Civil Chamber of the Court of Cassation of 17 May 2011, No. 10-18.639.
- 53.
Bourges Court of Appeal, 2 May 2003 Bizouarne v. Cartier, RDR 2004, p. 40.
- 54.
Lorvellec (1988), pp. 2, 5, 11–12.
- 55.
Constitutional Council 16 July 1971 on freedom of association, AJDA 1971, p. 537.
- 56.
Constitutional Council, 19 June 2008, 2008-564 DC; Constitutional Council, 29 December 2009, 2009-599 DC.
- 57.
In the context of the a posteriori verification, the applicant must report the violation of a right or freedom, and the Constitutional Council has already ruled that Art. 6 of the Charter on sustainable development “does not establish a right or freedom guaranteed by the Constitution; that this fact cannot, in itself, be relied upon to support a priority issue of constitutionality on the basis of Art. 61-1 of the Constitution” Constitutional Council, 23 November 2012, No. 2012-283, QPC. On the other hand, the violation of Arts. 1 (right to a safe and healthy environment) and 2 (the duty to preserve it) could be relied upon: see Constitutional Council, 8 April 2011, No. 2011-116, QPC, AJDA 2011 p. 1158; Constitutional Council, November 23rd, 2012, No. 2012-282, QPC.
- 58.
The report cited, drafted under the direction of Marion Guillou, also calls for the establishment of a catalogue of accurate, reliable and readily available data and the introduction of a shared-information system (Guillou 2013, pp. 46–49).
- 59.
Two of them in livestock farming: mixed farming-dairy cows and pig production on straw-bedded systems, and four in crop production: low-input extensive crops, field crops with reduced tillage, perennial crops using IPM and agro-forestry.
- 60.
Some former agro-environmental measures are indeed close to what the report coins as system AEMs such as the agro-environmental grassland premium or the AEM called “low-input forage-based mixed farming and stockbreeding system.”
- 61.
We should note that these undertakings have already been supported as part of the former AEMs called “regional” measures; see Hermon and Doussan (2012), pp. 291 et seqq.
- 62.
Keynote address at the delivery of the report, available on the website of the Ministry of Agriculture.
- 63.
In the name of collective regional measures, the report calls for the implementation of exchanges between crop farms and stockbreeding farms in the same agricultural area. Crop farms would provide grain and straw in exchange for manure and slurry, so that the use of mineral nitrogen would be greatly reduced, or, better still, the report suggests a collectivization of the objectives of ecological focus areas: a certain surface could be used by each farm, and an area greater than the sum of all individual farms put together would be collectively managed; report quoted above, pp. 39 et seqq.
- 64.
Perhaps too broadly—in the sense that the concepts underlying the EIG, “sustainable change in practice” and “dual economic and environmental performance,” are themselves not defined. It is up to the administrative authority that validates the project to show rigour and purpose.
- 65.
Art. L. 255-2-1. “The administrative authority may make it compulsory for individuals or legal persons who distribute or dispose of nitrogen fertilizers for agricultural use in a specific area- at no cost or for a fee, to provide an annual activity report.”
- 66.
The creation of this market for savings certificates for plant protection products is presented by the Guillou Report as “an alternative or complementary to a fee increase” (Guillou 2013, p. 142).
- 67.
Knowing that voluntary measures organized under the Ecophyto plan will not meet the established goals, this scheme should be ambitious enough to overcome “the first inconclusive results.” The target of reducing the use of pesticides—seen earlier and established by Grenelle 1—is thus considered out of reach: Guillou (2013), p. 73.
- 68.
At a conference organized by INRA on 17 October 2013, the Minister of Agriculture, Le Foll announced the goal of moving towards better economic and environmental performance for 50 % of the farms by 2025.
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Hermon, C. (2015). The Relationship Between Agricultural Law and Environmental Law in France. In: Monteduro, M., Buongiorno, P., Di Benedetto, S., Isoni, A. (eds) Law and Agroecology. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-46617-9_12
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