After over two decades of extensive experience in major international law firms in all segments of the environmental law field, David Desforges set up his own practice in 2015. As a counsellor and litigator, his client base includes international and French corporations and private equity firms. With an academic background in France and in the US, David now also lectures on a variety of environmental topics in universities. For the last 12 years, David has consistently been ranked among leading French environmental law practitioners.
What attracted you to specialise in environmental law?
I specialised very early on in environmental law (during the previous century!) and have continued specialising in this field ever since. A combination of academic training, personal interest in the subject matter, curiosity and circumstances led me to focus on this area of the law. Environmental law stands at the crossroads of the notions of public interest and private interest. When advising corporate clients, dealing with environmental law requirements does not only boil down to securing legal compliance issues. Environmental law advice carries another rationale –embedded within – which goes beyond the corporation’s sole interests and which actually questions the impact corporate actions may have, or will have, on the environment and on the public at large. Applying this dual-sided approach in a variety of sectors, within different corporate cultures and together with a wealth of competent interlocutors is something I have always found useful, rewarding and intellectually stimulating.
To what extent are current laws effective in preventing environmental damage? How might they be adapted or changed to achieve better outcomes?
To paraphrase Samuel Johnson, I’d be (sadly) tempted to say: “How small, of all that the environment and biodiversity endure, that part which laws and kings can cure.” Indeed, over the last 40 years, environmental laws have piled up in Europe and elsewhere in unprecedented proportions. And it is also over the last 40 to 50 years that the generation of greenhouse gases and the extinction of species have skyrocketed to hazardous and previously unrecorded levels.
We have now entered an age where adaptation is as important as prevention. In recent times, we have all witnessed climate-related events which were foreseen by 2030, not 2020. Certain commentators tell us not to worry about the apocalypse because it has already happened. I do not want to go that far. It is nonetheless evident environmental law worldwide will only grow more stringent and invasive. It is equally obvious that there are limitations to what these laws and regulations can achieve. Constraints and sanctions work to a certain degree. Constraints tend to be evaded when excessively burdensome, while sanctions are mediocre drivers for change.
Achieving better outcomes means gathering collective momentum towards identifiable, attractive, consensual and reachable environmental goals. We as consumers – whether professional or individuals – must play a key role in this. I am personally convinced that above and beyond legal changes that can be pushed forward and enforced, no meaningful change will occur unless and until consumers pay the real price for goods and services; that is a price that genuinely incorporates the social and environmental impact of the generation of such good or service. We are moving towards this but are not there yet. It will take an educational shift across generations and massive awareness efforts for this to be attained.
What are the main environmental risks clients are currently encountering, and how might they navigate them?
Clients know that environmental risks are multifaceted and most often difficult to assess in financial terms. Tackling environmental risks means moving forward with an eye on the past (where assets and activities may still hold their fair share of risks) and an eye to the future which may be riskier than expected.
Past risks reside essentially in historical liabilities attached to closed industrial sites, or to products or substances which eventually proved to be undesirable (PFAS, for example, are a current illustration). Past risks translate into real actual liabilities. Turning a blind eye to these is not advisable. Conversely, mapping, prioritising and addressing past liabilities openly and proactively constitutes in my opinion the only reasonable strategy.
Firstly, current and future risks reside in the very dense and ever-changing legislative and regulatory environment corporations evolve in. This requires unyielding monitoring and vigilance. Corporations can be looked at for the environmental impact of their activities. Hedging risks therefore means ensuring that legal changes are timely factored in and taken into consideration. It also means that the environmental impact of activities must be measured before, during and upon completion of such activities. It calls for a permanent corporate endeavour. This is not new. However, corporations can also be looked at based on how they manage risk prevention and document such management, whether at home or abroad, for those with an international outreach. Such an expansive scope is new and very challenging. Indeed, pursuant to recent developments a company is accountable not only for its actions but also for those of its business partners and suppliers.
Secondly, future risks also reside in the development of a new breed of litigation in which claims of corporate liability for climate change are made based on a vast array of legal grounds ranging from negligence, trespass, deceptive advertising, to public or private nuisance or even product liability. Thanks to statistical tools and hard data, claimants may now trace one corporation’s contribution to climate change and seek damages accordingly. Although this is a future risk at this point (note, however, that cases worldwide develop quickly), this is one where the past may resurface and create strong and damaging waves. CEOs, managers and directors are aware of this emerging trend but still need to be better prepared.
Finally, reputational risks must be cited here. Public opinion is increasingly sensitive to environmental issues. With the immediate and global spreading of information via the internet, it takes little or no time for a claim of corporate environmental wrongdoing to be publicised and to cause tremendous reputational damage. Corporate communication on environmental and social issues requires special care as it is closely scrutinised and dissected by NGOs and shareholders alike. Corporations must be on the lookout for negative publicity, if not fake news, affecting them and be ready to provide clear and verifiable answers.
How has covid-19 affected your practice and the sector more broadly?
Covid-19 has now been in the background for about a year and seems to be here to stay. That said, the impact of the virus on the state of environmental law is yet to be seen. A definitive relationship between the emergence of viruses and the gradual warming of the Earth’s atmosphere has not been evidenced but is not unlikely. Also, a connection is yet to be established between increased impacts on biodiversity and habitats, and the migration of viruses from vertebrates to humans.
In the meantime, one of the outstanding issues is to what extent covid-19 may bring about the reshuffling of certain supply chains and, with it, new or aggravated domestic risks which corporations will have to prevent. Another issue is whether this pandemic is likely to precipitate the advent of energy and ecological transition reforms already contemplated in Europe or embolden them as calls for a radical change of gears are increasingly being heard. Regardless of the implementation of the European Green Deal, covid-19 will have a lasting impact on how we work, go to work (if at all), consume and travel. Such changes will carry their own brand-new environmental challenges and will in turn entail regulatory changes. It is already palpable.
What benefits would behavioural changes on the part of lawyers and clients bring to the environment and the economy more generally? What behaviours would you promote?
Based on my early experience, dealing with environmental issues used to be viewed by corporations essentially as a constraint. It is undeniably a constraint. One that entails significant costs (not only consisting in lawyers’ fees!). However, reconsidering a corporation’s business from an environmental perspective is always a sound exercise and will increasingly be an inevitable one. It should be seen as an opportunity for innovation, a source of enhanced competitiveness and a chance for an improved reputation. Whether it is systemic or not, crises such as the one we are going through are challenging. However, more than a parenthesis, it should probably be viewed as a door open to novelty and audacity.
As an attorney, it is my duty to draw my clients’ attention to applicable regulations, to explain how they are enforced in practice and to raise awareness at all levels of the company regarding the nature of risks (legal or else) entailed in case of failure of the company or of its employees to comply. As a citizen, I question my own choices and practices and endeavour to adjust them towards a more sustainable lifestyle. Consumption and traveling habits form the bulk of my carbon footprint. These are the variables on which I primarily act while the sirens of advertising and easy consumption are difficult to resist at times. Unless a scientific discovery of unforeseen proportions solves the climate change issue, our individual and collective behaviours remain key instruments for change. This is a message that corporations should continuously convey, for their own sake and for the planet’s.
How do you anticipate the practice area to develop in 2021? How might this impact your work?
Forecasts are difficult these days! Environmental and social governance will continue to be a major topic for clients to focus on. As far as the French environmental law market is concerned, the adaptation of the economy to the new circular economy obligations introduced in 2020 and gradually entering into force until early 2024 will continue to generate a significant volume of work. In this context, single-use plastics and packaging materials are a major preoccupation with more alternatives being promoted, with boosted recycling targets and reuse schemes, and with the phasing out of large categories of plastic-made items. In this context also, the carbon footprint of digital technologies is under close inspection and should shortly be regulated. On the transactional front, a steady work stream is expected with purchasers more alert than ever regarding the environmental performance and carbon footprint of potential targets.
What advice would you give to younger lawyers hoping to enter environmental law?
Above and beyond the interest and appetite one may have for environmental issues, entering environmental law primarily means being curious about things and people’s activities. Whether the aspiring environmental lawyer contemplates working for the public sector, NGOs or the corporate world, the practice of environmental law requires going to the field, meeting the client and his teams, understanding the issues, the business, and the activities, while always asking questions. Law school is one thing but listening and learning from our clients is absolutely key.
Environmental law also requires surrendering one’s preconceptions. Nature is complex. Technologies are complex, and our intertwined and interlocked world even more so. There is neither one totally good solution nor one totally undesirable. Problems have multiple and sometimes counterintuitive causes. Solutions to environmental problems must always be assessed in a dynamic way from various vantage points: local and global, short term and long term, economic and social, etc. This is the sort of balance environmental laws try to achieve, sometimes with arguably mixed results. The practice of environmental law therefore requires an affirmed taste for measure and compromise. Environmental law is based on solid constitutional and statutory principles, but practice shows there is in fact little room for dogma in this field. Sustainable development is an imperative and legitimate objective but several roads lead to this objective, including sometimes the “one less travelled by”.