Society for the Protection of Landscapes and Aesthetics of France et al. v. The Mills of Lohan
Jurisdiction: Administrative Court of Appeal
Side A: Société pour la protection des paysages (Ngo)
Side B: Les Moulins du Lohan (Corporation)
Challenge to a wind farm expected to harm protected species
On March 5, 2019, the Administrative Court of Appeal (ACA) of Nantes in France ruled that greenhouse gas reduction achieved by the development of renewable energy constitutes an imperative public interest justifying an exemption from the prohibition on harming protected species.
The case arose out of a 17-turbine wind farm proposed for the prefect of Morbihan. The wind farm was expected to damage part of the forest cover and several protected species. The developer sought an exemption from the prohibition against harming natural habitats and protected animal and plant species under the French Environmental Code. Such an exemption may be granted “in the interest of public health and safety or for other imperative reasons of overriding public interest, including of a social or economic nature." However, case law consistently holds that, even where such a public interest exists, a waiver can only be granted if there is no satisfactory alternative solution and it does not prejudice the maintenance of the affected species.
The prefect of Morbihan granted the waiver. Two local associations -- Society for the Protection of Landscapes and Aesthetics of France and Society for the Study and Protection of Nature in Brittany -- along with several local residents brought an action for annulment of this decree. The lower court granted their requests and annulled the order; the ACA then overturned the judgment after the developer appealed.
The ACA reasoned that the wind farm increases the production of renewable energy, making it easier to meet the objectives of reducing greenhouse gas emissions and combating climate change provided by legislation, by regional planning instruments, by European-level position papers, and by international agreements. The ACA also noted the region’s high energy dependency. Thus, taking into account this local context and the need to meet the objectives of developing renewable energy, the court ruled that the project must be considered as meeting an imperative reason of major public interest likely to justify the harm to protected species. The court also analyzed the measures to avoid, reduce, compensate for and monitor the project's impacts on the protected areas, and concluded that their implementation would allow the maintenance of the species concerned in a favorable conservation status.