What are "protected species" exemptions for logistics projects?

The common pipistrelle, the agile frog, and the floating water-plantain… These so-called "protected" species, which inhabit the natural environments around us, benefit from specific, tightly regulated protection that applies whenever "a particular scientific interest or the need to preserve biological heritage justifies the conservation of non-domestic animal species or uncultivated plant species," as provided since April 24, 2017, by Article R. 411-1 of the Environmental Code. "In practical terms, this means that it is prohibited to harm specimens through mutilation, destruction, capture, removal, or intentional disturbance, as well as to destroy, alter, or degrade their natural habitats," explains Laura Ceccarelli – Le Guen, partner in charge of urban planning at DS Avocats and an Afilog member.

The presence of these protected species throughout the country (in meadows, agricultural fields, public gardens, and brownfield sites, among others) makes environmental impact assessments frequent and complex, as projects seek the least harmful development solutions possible. "We work on development operations and major infrastructure projects for both the public and private sectors. We are not only talking about warehouses or factories, but also tramways and infrastructure for the Paris Olympic Games, for example…" details Vianney Cuny, attorney at DS Avocats. "We audit the impact assessment and support discussions with the reviewing authority, continues Laura Ceccarelli – Le Guen, on the project’s feasibility, on ways to avoid the exemption, or to incorporate it where it is unavoidable."

In a March 2021 ruling, the Court of Justice of the European Union held that the need for a "protected species" exemption could not depend on the project’s effect on the species’ conservation status. In other words, any harm to a single specimen of a protected species could trigger the need for an exemption. But what is the case law in France? "The position of the Conseil d’État was set out in an advisory opinion in December 2022, explains Laura Ceccarelli – Le Guen. First, whenever specimens of protected species are present in an area, the project owner must consider whether such an exemption is needed. Second, obtaining such an exemption is mandatory only if the project is likely to entail a ‘sufficiently established risk’ to individual protected species." Where one or more "protected species" are present, therefore, resorting to an exemption is unavoidable.

The project owner must then satisfy all eligibility criteria. "Exemptions are becoming increasingly difficult to obtain, notes Vianney Cuny, against a backdrop of pressure from environmental advocacy organizations that sit on some bodies, such as the National Council for Nature Protection (CNPN). It is important to understand that an exemption is not an authorization; there is no authorization to impact habitat. There is authorization to derogate from legislation only in certain very specific cases."

Indeed, for a project to obtain an exemption, it must meet three cumulative legal conditions. First, the project must serve an "imperative reason of overriding public interest." For Laura Ceccarelli – Le Guen, "there is no truly precise definition of this concept; case law is decisive." One emblematic example is the redevelopment of former industrial brownfields into a logistics hub (a private-sector project) serving the port of Le Havre. Second, the project sponsor must demonstrate that no alternative solution less harmful to protected species exists, by examining other locations or technical solutions. "On this point, we can in fact avoid applying for an exemption by concentrating projects on one part of the site or recommending other designs," specifies Laura Ceccarelli – Le Guen. The final condition is that the exemption must not be detrimental to maintaining species populations in a favorable conservation status within their natural range. "On this third condition, the court is particularly attentive to the so-called ‘ERC’ measures to avoid, reduce, and offset the project’s impact, says Vianney Cuny. The court is just as vigilant before the exemption is granted as it is, a fortiori, in ensuring that the measures have actually been complied with."

Under these conditions, a significant number of logistics warehouse projects have been unable to proceed because of their environmental impact. "Logistics projects are highly sensitive, stresses Vianney Cuny. First of all, these are projects with large footprints, which increases their impact on flora and fauna. Even though more and more projects use brownfields, brownfields are not always earmarked for logistics. These projects are sometimes located on undeveloped or non-impervious land because their location depends on proximity to economic activity zones or transportation hubs." Laura Ceccarelli - Le Guen adds that "the Zero Net Artificialization (ZAN) law encourages the recycling of brownfields, but here again, one should not assume there are no protected species, as natural areas can be rapidly repopulated. We often encounter situations in which an owner buys vacant or brownfield land with no particular biodiversity interest, only to find themselves a few years later with a project… and protected species on their land!" It should be noted that the regulations make no distinction between species that have long been present on a site and species that have recently settled there as a result of human action, such as decontamination operations.

And even once the exemption has been obtained, legal challenges remain possible. "The number of legal disputes has soared in recent years, making projects increasingly difficult to carry out. But this is prompting logistics real estate players to redouble their vigilance and innovation in improving ERC measures." These measures apply to both the construction and operational phases, requiring anticipation of all potential risks and the development of specific plans and solutions to pursue a goal of no net loss—or even a net gain—in biodiversity. By way of example, offsetting measures may include restoring part of the site to a natural state, managing invasive alien species, restoring ecological corridors, or reshaping riverbanks where a site contains a watercourse*. Project assessments are now all the more stringent when the species concerned are threatened in the area. However, anticipation, studies, and innovative protection measures can reconcile the preservation of flora and fauna with the development of ambitious logistics projects serving the economy and industry.

* Guide to defining ERC measures – General Commission for Sustainable Development