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Which Land Resources to Adopt for an Ecological Transition of Agri-Food Systems? A Cross-View of Law and Sociology

Pierre-Etienne BOUILLOT1 and Romain MELOT2

1 Paris Saclay University, AgroParisTech, Palaiseau, France

2 Paris Saclay University, AgroParisTech, INRAE, UMR SADAPT, Palaiseau, France

In this chapter, we present the principal issues in current legal provisions relating to agricultural land resources, taking as our point of observation the tools and dynamics that are contributing to the transition of agri-food systems. We offer a dual legal and sociological perspective on these developments, addressing both the analysis of legal developments and their implementation and mobilization by social actors through empirical studies. We focus mainly on the French institutional framework, supplemented by references to empirical work in developed countries. Without aiming to be exhaustive, our aim is to provide an overview of the main legal instruments that contribute to the greening of agricultural land policies, as greening can be defined as "a process by which the environment is taken into account in public policies, organizations and even professional practices" (Mormont 2013, authors' translation).

1.1. Legal framework and contractual practices in farming: towards a greening of land tools?

While agricultural policies are largely defined at the EU level, one of the particularities of the legal framework for farmland is that it remains largely dependent on the national legal framework. In the context of French law, we can observe a movement towards the greening of land tenure tools, in parallel with the integration of environmental objectives into community law, which can be seen by examining the legal provisions that define the administrative framework for access to land and contractual obligations.

1.1.1. Forms of authorization over access to land

1.1.1.1. The latest on rural land development

Of the three rural land development procedures provided for under Article L. 121-1 of the CRPM1 - agricultural and forestry land development, exchanges and amicable transfers of rural real estate and the reclamation of uncultivated land - we focus on developments in the first to understand the greening of rural land development. To this end, we need to return briefly to its origins: land consolidation. This is a relatively old procedure, whose first legal foundations were laid out by a law, dated November 27, 1918. The reforms that this procedure has undergone have each brought new elements to the process, making land consolidation one of the major tools for regional planning in the service of economic and social development. On the one hand, rural land consolidation has been given the objective of increasing farm productivity, and, on the other, it accompanies regional development when combined with major works or urban planning operations. While economic and social considerations originally governed the redistribution of land, the environmental consequences of land consolidation (flooding, erosion, damage to biodiversity) have led the legislator to gradually introduce corrective measures to the procedure.

After the law of July 12, 1983 (no. 83-630), the land survey was supplemented with an environmental impact study. As the reorganization of agricultural land also involves related work (e.g. hedge removal, road modification), it became necessary to analyze the environmental impact of these modifications. The purpose of the inquiry is to inform the public and gather their opinions, suggestions and counterproposals (Lorvellec 1988). The law of February 23, 2005 (no. 2005-157) introduced far-reaching changes to rural land development and, in particular, to the various land consolidation procedures. Article L. 121-1 of the CRPM sets a new common goal for the various land development methods, which is "to ensure the development of rural natural areas [...] in compliance with the objectives mentioned in Articles L. 111-1 and L. 111-2" (authors' translation), which include environmental objectives. Article L. 123-1 of the CRPM still states that the main aim of this procedure is to improve the agricultural use of rural properties, so as to create "rural holdings in a single block or with large, well-grouped plots" (authors' translation). While the main aim is still to improve farming operations by rationalizing farm labor productivity, the agricultural land development procedure has been enriched by environmental considerations.

The law of August 8, 2016, for the reconquest of biodiversity (no. 2016-1087) added the possibility that the rural development of the perimeter in which the procedure is implemented could enable "the use of parcels for natural, agricultural or forestry purposes with a view to preserving the environment" (authors' translation). By way of example, the prefect can introduce prescriptions to encourage the conservation of cultivated wetlands as natural grasslands by prohibiting drainage and filling (Guyet 2016). Previously, the only way to legitimize the land consolidation process from an environmental standpoint was through an impact study. This was reinforced by the decree of March 30, 2006 (no. 2006-394) and is divided into two parts. The first is similar to what was previously required, i.e. a public inquiry including an analysis of the land and an environmental study (CRPM, R. 123-9). The second concerns environmental recommendations relating, among other things, to the preservation of natural areas and the prevention of natural hazards. These are among the provisions common to all land development methods (C. rur., R. 121-20). In addition to this development, which above all requires the administration to take into account the impact on the environment before authorizing land reorganization (Struillou 2002), other rules demonstrate a more substantial evolution, such as the extension of the role of the communes in the development of land.

1.1.1.2. Mechanisms for regulating access to land: farming authorizations

The administrative regulation of access to land through the granting of farming authorizations, which characterizes the policy known as le contrôle des structures (translated here as farming authorizations), is unique to France among developed countries. It is a legacy of the reforms introduced in the early 1960s to regulate the rural land market in the context of agricultural modernization (Boinon 2011). Under Article L. 331-2 of the CRPM, farmers planning to develop an area of land on the same farm that exceeds the threshold set by the regional master plan for agricultural holdings are required to apply for prior authorization. The validity of the lease is subject to obtaining this authorization. The land actually farmed must be taken into account, even if it is provided free of charge (Cass. Civ. 3e, November 26, 2008, no. 07-16.679).

According to Article L. 331-1 of the CRPM, farming authorization is expressly aimed at the installation of new farmers, rather than the expansion of existing farms. The aim is to limit the expansion of farms, which would prevent new installations. In particular, this objective helps to maintain activity in rural areas and the corresponding population in order to occupy the whole territory. However, legislative action has not stemmed the decline in the number of farms. Smalland medium-sized farms are the hardest hit. The disappearance of these farms has led to a concentration of land on the largest farms. More recently, environmental considerations have been added to the initial objective of promoting access to land and limiting land concentration. The reform of the 2014 Law on the Future of Agriculture2 (no. 2014-1170 of the loi d'avenir pour l'agriculture de 2014) makes it possible to combine economic, social and environmental objectives (CRPM, Art. L. 331-1 et seq.).

A comparative study of farm master plans that define local priorities for the allocation of farming authorizations (first on a departmental scale, then on a regional scale after the 2014 law) shows that this consideration of environmental objectives nevertheless remains variable depending on the territory (Guéringer 2023). Research into the implementation of farming authorizations also highlights that, in the event of competition between farmers for the allocation of authorization to farm, environmental considerations are still rarely mobilized (Piet et al. 2021). In addition, conditions of access to information on the land market are sometimes unfavorable to project developers from non-agricultural backgrounds, who are often committed to the agroecological transition (Hobeika 2013; Baysse-Lainé 2020).

1.1.1.3. Land development companies (SAFERs): interventions on the land market

Sociétés d'Aménagement Foncier et d'Établissement Rural (SAFERs, Land Development and Rural Development Companies) were created by the law of August 5, 1960 (no. 60-808). They are private-sector bodies that take the form of limited companies, although they are similar to associations in that they are prohibited from pursuing profit-making objectives. Their mission is to channel the agricultural land market and promote rural development, and to this end, they have been given the means to purchase land freely offered for sale by landowners and resell it to farmers in accordance with legal objectives. As such, they have the right of pre-emption...