ORE: A Legal Tool for Biodiversity

Still little known, the Real Environmental Obligation (ORE) has nevertheless existed in France since 2016. To understand why this ORE was created, we must go back to July 10, 1976, when the Nature Protection Act imposed new development constraints on the real estate sector. One of these constraints is summarized by the ERC sequence (avoid – reduce – offset), resulting from Article L. 110-1, II-2 of the Environmental Code. Included in a mandatory environmental impact assessment, this sequence provides a structured approach to eliminate, reduce and offset harmful consequences for biodiversity. At the European level, these environmental-assessment concepts appear in various directives; internationally, the 1992 Convention on Biological Diversity mentions avoidance and reduction measures aimed at eliminating potential harm to biological diversity.

In a context of major tensions in the logistics real estate market and a desire to reindustrialize the country, constructing buildings remains necessary. Given the essential technical facilities, truck parking spaces and fire-access road around the building, the “ avoid ” phase remains difficult, if not impossible, in terms of land take. The “ reduce ” phase, meanwhile, is not enough to fully preserve the environment. It is therefore necessary to “ offset .” This is a major issue for industry stakeholders, particularly because “ the August 8, 2016 Act on reclaiming biodiversity, nature and landscapes imposes the principle of ecological equivalence, both quantitatively and qualitatively ,” explains Matthieu Rivet, Director of Expertise and Network Support at CDC Biodiversité, an entity created in 2007 by Caisse des Dépôts et Consignation that works to restore biodiversity across regions by creating, testing and deploying long-term solutions with public- and private-sector stakeholders.

Indeed, how can we be certain that the offset measures put in place are effective as well as lasting? Following a slow and lengthy process of consideration, the ORE (Real Environmental Obligation) was created and codified in Article L. 132-3 of the Environmental Code, as a legal tool to guarantee the durability of environmental actions implemented. It is particularly relevant when offset measures must be carried out outside the perimeter of the site concerned. The ORE is a contract, established on a voluntary basis, that governs relations between the landowner and a co-contractor, which may be a local authority, a public institution or a private legal entity acting to protect the environment. A party responsible for the offsetting obligation may therefore join the co-contractors.

That was the choice made by Aréfim in 2022 for its site in Château-Thierry, in the Aisne department. “ When we were prospecting, the Omois industrial zone seemed to us the perfect location for developing a 60,000 m² upper-tier Seveso facility, with triple environmental certification (HQE Excellent, BREEAM Excellent Fully Fitted and Biodivercity Performant), recounts Benoît Duffours, Deputy Chief Executive Officer of logistics and industrial real estate company Aréfim. The 13-hectare site had in fact received excavated material from construction of the A4 highway in the 1970s, and we then thought it would not be difficult to build in this area, especially as the PLU (local urban plan), the Scot (territorial coherence plan) and the Sraddet (regional plan for planning, sustainable development and territorial equality) designated this area for economic development .” However, over more than 50 years, nature and agriculture had reclaimed the site. After the mandatory fauna and flora audit required to obtain administrative authorizations to build and operate, it became clear that the biodiversity issues were significant. “ We therefore applied the ERC sequence: we ‘ avoided ’ by moving the building from its initially planned location; we ‘ reduced ’ by building fewer square meters and establishing protected areas to preserve fauna and flora .”

Despite these measures, the “ offsetting ” phase remained necessary. Aréfim’s teams then contacted the community of municipalities to find land on which to implement this offsetting. “ That is how we met the Crézancy agricultural and wine-growing high school, which had fallow land with the same technical characteristics as the area we were going to artificialize .” Not wishing to manage the matter alone, Aréfim also called on CDC Biodiversité, whose mission would be to oversee implementation of the offset measures. “ The tripartite ORE contract thus signed fully reflects the spirit of our company’s four pillars (a purpose-driven company since 2023): co-construction, the environment, biodiversity and well-being at work .” The project also includes an educational component: the land, owned by the State and remaining under the management of the agricultural high school, will enable the institution’s students and trainees to learn ecological restoration in suitable conditions, in connection with agricultural activity. “ The €1.3 million we invested will pay the trainees, as well as fund the acquisition of new machinery, which will not be used solely for Aréfim’s offset measures .” The ORE entered into by Aréfim runs for 30 years, with verification by DREAL Hauts-de-France to ensure that each party’s commitments are being met.

“ The ORE entails an obligation of results, not merely an obligation of means, says Matthieu Rivet of CDC Biodiversité. In the context of environmental offsetting, it is often linked to a prefectural order that binds the signatory parties for the duration provided for in the ORE contract, which can extend to 99 years .” The legislative framework imposes no strict constraints; the co-contractors decide which measures to implement, provided that their purpose is to maintain or restore biodiversity. This freedom makes it possible to draft agreements closely aligned with ecological, social and economic realities. It also makes it possible to address a broad range of issues. For example, the ORE contract can include natural habitats not covered by legislation on protected natural areas. A distinctive feature of this contract is that, as the obligations are attached to the property, they continue even if ownership changes. The Ministry for Ecological Transition and Territorial Cohesion, in collaboration with the Centre for Studies and Expertise on Risks, Mobility, Environment and Planning (Cerema), provides a methodological guide consisting of fact sheets designed to help field stakeholders adopt this tool.