So that compensation for damage to biodiversity becomes a tool for regulating and improving projects

Various recent legislative developments address compensation (green industry law, so-called economic life simplification bill, agricultural bill). If we are currently experiencing suspended time, it is clear that these ongoing reforms are not accompanied by a global reflection on environmental and biodiversity policies.

A working group for concrete proposals

“Lifti wishes to take advantage of this project to overhaul the compensation rules to rethink the system in depth. In order to be truly effective and to take on the characteristics of a real tool for improving or even virtuous regulation of planning and development projects, compensation for damage to biodiversity must be repositioned at the center of the process, and stop gravitate to its periphery,” estimates the think tank working group led by Christophe Barbara.

Such logic implies an evolution of practices and paradigms, so that project leaders and stakeholders no longer approach the “environment” in a negative way and consider the obligation to carry out an impact study as a real opportunity. to improve their projects, plans and programs. “We wish to draw lessons from what has been revealed to us by experience since the strengthening of the legal framework for ecological compensation in articles L. 163–1 et seq. of the environmental code, by the biodiversity law of 2016. And on the strength of this, rethink the current model to make it effective, so that projects can be carried out under viable economic conditions, while guaranteeing the highest level of environmental protection.”

A current system that is not very efficient?

A scientific study published in February in the digital journal Cybergéo, carried out by researchers from the National Museum of Natural History and the universities of Tours and Leeds, highlights the inadequacies of the current approach to ecological compensation. Using a national database, researchers observe that compensatory measures generally consist of actions whose ecological added value seems out of step with the destruction caused. One of the limits mentioned concerns the choice of land where these compensations take place. They are judged as already having good biophysical integrity and of insufficient surface area and too fragmented to be able to provide real ecological added value, while "the gains are greater when actions aim to restore the varied ecosystem functions in spaces degraded on a large scale. This observation was shared by the various participants in the discussion workshops, including the project leaders for whom the choice of sites was pragmatically more dependent on economic and practical criteria than ecological ones.

Enough to justify an overhaul of the institutional framework allowing compensation to be allocated to degraded and more suitable sites. Conversely, the various recent legislative developments addressing compensation (green industry law, so-called economic life simplification bill, agricultural bill) are not accompanied by a global reflection on environmental policies. and biodiversity.

Better distribute responsibilities

If better choosing degraded land and anticipating their land control appears to be essential for effective compensation, this cannot be sufficient. Lifti also points out the fact that the ecological compensation system is today too locked in terms of governance. Article 163–1 II of the Environmental Code provides that even if the project owner chooses to delegate the carrying out of compensation to a third party, he cannot transfer his administrative responsibility; he remains solely responsible to the administrative authority even several decades from now. This creates operational difficulties. Indeed, some players are reluctant to engage in the production of turnkey sites for investment projects, knowing that they will remain administratively responsible. The issue of perpetuating compensation measures is raised here.

The working group is considering in particular the option of a “mechanism for transferring the site, under conditions, to a competent operator responsible for its management, similar to what the conservatories of natural spaces, the coastal conservatory or certain communities holding skills in the management of natural spaces, such as the Departments with sensitive natural spaces (ENS)”. Furthermore, the importance of structuring a truly operational supply-based compensation system was noted.

Waste of time vs opportunity to do better

The time factor is essential in a project. Beyond legal, economic, technical and operational constraints, environmental procedures lengthen the time taken to prepare and examine requests, which is one of the reasons why project owners approach them with a certain reluctance. .

Based on this observation, the cycle of reflection initiated by Lifti resulted in the development of a systemic approach focused on the five stages of a project, integrating the elements of the ERC sequence at each stage and, consequently, compensation for damage to biodiversity. Thus, good anticipation of impacts and corrective measures in all their dimensions as far upstream as possible of the project will provide a more understandable framework of the issues and actions envisaged for all the stakeholders concerned. The compensation mechanism will be able to fully play its role as an approach to improving projects and regulating the latter.

All of these proposals are made available to elected officials and market players today. Lifti is already preparing to deepen this work, with the aim of moving towards an ever more virtuous model, both ecologically and economically.

This debate will be extended during the next edition of the National Conference on Land and Territories, on October 10 and 11 at the Nancy Congress Center. This will be the theme of one of the conference courses organized by Lifti on this occasion.

Focus: The 5 phases of a project, as many opportunities to think about compensation

The proposals resulting from the cycle of reflection carried out by LIFTI relate to the entire system of compensation for damage to biodiversity and are presented according to the aforementioned five-phase sequencing.

Examples of proposed tracks

In phase 1

• Strengthen land control tools specifically for compensation and secure the use of the DUP in order to allow, where necessary, the expropriation of land on which it appears necessary to carry out compensation measures for damage to biodiversity;

In phase 2

• Structure, harmonize and make interoperable land and territorial databases at the most relevant scales for each of the stakeholders and to facilitate their exploitation and analyses;

In phase 3

• Clarify the liability regime when the project owner entrusts the implementation of compensatory measures to a competent third party (what about in the event of failure or non-achievement of objectives due to negligence or an error committed by said third party?)

In phase 4

• Modify the applicable legislation so that it now specifies the possibility of transferring, under conditions, the responsibility of the project owner to a third party (public or parapublic structure, preferably) from the start of the monitoring and management, according to terms to be defined;

In phase 5

• Consider a mechanism for transferring the site, under conditions, to the competent operator responsible for its management, similar to what the conservatories of natural areas, the coastal conservatory or certain communities with management skills do. natural spaces, such as the Departments with sensitive natural spaces (ENS);
• Protect compensation areas by using strong protection or preservation tools (classified site, nature reserves, Natura 2000, parks, etc.) or dedicated to compensation sites (environmental easement, etc.);

Or

• Share the challenges of ecological compensation between the project owners and the territories concerned (local authorities, departments, etc.).

* public and private project leaders, large land owners, industrial platforms, design offices, developers, land and territorial experts, lawyers and jurists, etc.