Among all human activities, agriculture is one of those which maintains the closest links with the environment. Firstly because it exploits its resources. The rural and maritime fishing code expresses this very clearly, by defining agricultural activity “by nature” as the control and exploitation of an animal or plant biological cycle.
If we set aside the specific case of above-ground crops, agricultural activity almost always takes place in and with the environment, of which it is moreover one of the most immediately visible aspects, after generations of farmers have succeeded one another to shape its landscapes.
Explosion of environmental standards
This “organic” link between agriculture and nature has particularly exposed it, for at least three decades, to the explosion of environmental standards. Not a week, or not a day, goes by without the media highlighting the clash of “cultures” which is the tragedy of many French farmers today.
Long pampered by public authorities, agricultural business leaders must now account for their environmental footprint and are prime targets for the most zealous defenders of natural environments. This new constraint of environmental law would certainly have been better accepted by our farmers, if it was not combined with a renewed and unfavorable economic context.
Faced with a reorientation of the priorities of national and European policies, including the CAP, and a globalization of markets which drives prices down, supporting levels of debt unrelated to the average profitability of their farms, farmers regularly express their “fed up”.
Far from refusing in principle any form of environmental standard, they express their incomprehension in broad daylight, particularly when the rules imposed on them are unenforceable against foreign competitors who export at cut prices to our territory.
Seek ways of dialogue
We must therefore not avoid, but clearly raise the issue of the relationship between agriculture and environmental law. Not to hysterize a debate that already exists, but to seek, tirelessly and necessarily, the paths of dialogue and conciliation that the actors on both “camps” need. The growing conflict over agri-environmental issues occurs in a context of fragmentation of the general interest and the running out of state power.
The Council of State made the observation, already worrying, in its report for the year 1999: “Our societies have become too complex and the contributions to their functioning too fragmented for the definition of common standards to be carried out according to procedures as simple as in the past. The concept of the State ordering civil society from the outside gives way to a new representation of a State which arbitrates between interests. »
This text dates back a quarter of a century and the diagnosis must be updated: the difficulty of the decision is now increased, while the elective powers no longer benefit from the confidence which would allow them to arbitrate effectively between contradictory interests.
The result is an increase in agri-environmental disputes which mean that the arbitration function is devolved to the judge, who has unwillingly become the master of the future of vital projects for the sustainability of farm activity (water withdrawals, replacement reservoirs, livestock buildings, production of renewable energies, etc.).
An incomplete Environmental Charter
This jurisdictional arbitration produces, depending on the specific case, contrasting decisions, always likely to be called into question, at least initially, by the effect of the legal remedies. Farmers regularly point out this legal insecurity and this lack of visibility which hampers the development of their farms.
At the same time, agriculture is called upon by public authorities and society as a whole, with the emergence of very mobilizing concepts such as food sovereignty, responding to a legitimate need for national autonomy, or food security, expressing a desire for quality and local agricultural production.
It is in this tense context that the proposal, put forward in particular by Édouard Philippe, candidate for the 2027 presidential election, to include agriculture in the Environmental Charter of 2004, which is one of the components of the constitutionality bloc, that is to say the set of legal standards with constitutional value to which the Constitutional Council refers to exercise control of constitutionality.
Certainly of union inspiration, this proposal cannot however be analyzed as a whim of farmers presumed to be non-virtuous or wishing to perpetuate old production patterns indefinitely. It is even less an act directed against the fundamental contributions of the Environmental Charter and the precautionary principle which, if we can regret that its fundamentals are sometimes misused by agents favorable to a policy of inaction, is a rational approach translated legally by the delimitation of the responsibility of the State with regard to the environment and the proportionality of its decisions.
Strengthen the block of constitutionality
However, if the interpretation by the various legal bodies of the State of these provisions excessively and repeatedly contravenes the continuity and legal security of agricultural activity projects, it is therefore appropriate to work towards a clarification and consolidation of the bloc of constitutionality within which environment and freedom to undertake in agriculture often seem hierarchical rather than reconciled.
This consecration of agriculture in the bloc of constitutionality is a necessary step to reaffirm the responsibility of the State with regard to freedom of enterprise, a principle with constitutional value.
It is also necessary to create the conditions for a balanced arbitration and a coherent articulation between, on the one hand, the legitimate interests of preserving our environment and, on the other hand, the fundamental interests of the agricultural sectors, guarantors of healthy food, sufficient in quality and quantity, meeting the needs of the population. One cannot do without the other, and vice versa.
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