Important reforms of French environmental law have either entered into force as of January 1st 2017 or will shortly apply.
At the core of this reform, is the will of the Government to move towards a simplification and a modernization of the environmental procedures to which projects, plans and programs likely to have a significant impact on the environment are subject, pursuant to the French environmental Code.
Additionally, this reform aims at bringing French environmental law and regulations in compliance with the European requirements.
These reforms concern the environmental impact assessment of projects, plans and programs, the participation of the public to the decision-making process surrounding projects that are likely to have a significant environmental impact and lastly, the implementation of the single environmental authorization.
Simplification of the environmental impact assessment
The new rules regarding the environmental impact assessment of projects1 are in line with the objectives of simplification and clarification of the existing law and, most importantly, in compliance with the European requirements under Directive 2011/92/UE dated December 13th 20112 as modified by Directive 2014/52/UE dated April 16th 2014.
Pursuant to these rules, the environmental impact assessment now refers to a process consisting of several stages, including, in particular, the production of an environmental impact report or "impact study" but also public consultation, to which are subject projects, plans and programs likely to have a significant environmental impact.
One of the main innovation of this reform, consistent with the spirit of the Directive, concerns the adoption of a project-based approach.
Indeed, prior to the application of the reform, the "procedural approach" implied that the same project, which might give rise to different authorization procedures under environmental regulations (i.e. environmentally-sensitive facilities, water act, land clearing, national nature reserves or classified sites etc.) had to be be subject to an impact assessment under each of these procedures and might entail, if necessary, the organization of several public inquiries.
Inversely, the "project-based approach", set out by the European Directive, leads to requiring a single impact assessment for the same project although said project may be subject to several authorizations under environmental law. Thus, the project must be clearly defined, at the earliest stage possible, since the impact assessment has to cover the entire project and integrate all its components.
Thus, for these projects, the environmental impact assessment may be systematically required when the project exceeds certain thresholds and criteria laid down in the Environmental Code3, or else, be required by the Environmental Authority following a case-by-case examination.
The reform has extended the examination on a case-by-case basis which implies that certain projects subject to an authorization pursuant to environmental regulations are no longer systematically subject to an impact assessment, depending on their potential impacts on human health and the environment.
Projects subject to the new environmental impact assessment will also be submitted to the reformed public participation procedures.
Modernization of the public participation
The main objectives behind the public participation reform4 were to modernize and simplify the procedures intended to ensure public information and participation to the development of projects likely to have a significant environmental impact as well as strengthen the effectiveness of said participation at the earliest possible stage, prior to and in the course of the decision-making process regarding these projects.
Firstly, the reform reinforces public participation upstream of the decision-making process. In particular, a preliminary consultation can be organized, for projects which are subject to the environmental impact assessment, either by decision of the project holder, the competent authority or as part of the European citizen's initiative.
The purpose of this preliminary consultation is to involve the public at the earliest stage possible, so that said public can speak out on the advisability of a project in all its various aspects before the project holder has even filed his application.
In this way, the Government has addressed the objections concerning the lack of public participation prior to the decision-making process of certain projects.
Additionally, the reform has modernized the consultation procedures that apply during the decision-making process.
In particular, the reform works to modernize the system of public inquiry, through its dematerialization, by developing the possibility of online consultation and participation while maintaining the "face-to-face" aspect of the public inquiry, as it is still conducted by the investigating commissioner5.
Thus, for instance, the notice of public inquiry informs the public of the websites where the file can be consulted online.
Additionally, the commissioner enables the public to send its observations and proposals on a project via email; said observations are made available on a website6. Afterwards, the commissioner's report and conclusions following the inquiry are published on the website of the public inquiry.7
For those projects which are subject to an environmental impact assessment but not to a public inquiry, the reform provides for an alternative process of public participation.
The file made available to the public contains the same elements as the public inquiry file, the essential difference being the absence of an investigating commissioner.
The implementation8 of the "single environmental authorization"
Last but not least, the objective of simplification of the environmental procedures necessarily entails the implementation of a single environmental authorization at the national level.9
Currently, the authorization procedure of environmentally-sensitive facilities is already largely integrated to the extent it covers most aspects of environmental and health protection as well as nuisance prevention and safety. However, so that the facility can be operated, other permits must be obtained by the project holder such as the building permit, the clearing permit (when the project is to be located in a wooded area), the exemption from the prohibition to destroy protected species etc.
Thus, the primary objective of the reform is to group, as part of the environmentally-sensitive facilities authorization procedure, any other authorizations falling within the scope of the protection of nature and landscape.
The aim is to rationalize the coherence of the system so that a project can be authorized all at once rather than by independent successive decisions. This ensures greater legal certainty for the project which is granted a sole authorization and will no longer risk failing to obtain one of the necessary authorizations.
The objective is also to reduce delays so that the project holder may obtain a faster decision on the overall project, and, if it meets the protection requirements, implement said project as soon as possible.
It is to be noted that the reform maintains the procedure of the "project certificate" which can be requested to the competent authority by the project holder and identifies the procedures that apply to the project, specifies the expected content of the application and may provide, in agreement with the project holder, a schedule for the review of his application.
Additionally, before the filing of his application, the project holder may request information from the competent authority enabling him to prepare his project as well as his application file. However, this opinion has no effect on the project holder's responsibility as to the quality and content of his application.
Thus, pending feedback regarding the application of these reforms, it appears their purpose remains to simplify environmental procedures so that the implementation of various projects, plans and programs will be made easier on companies, without, however, endangering environmental protection.
- Government Ordinance of August 3rd 2016 (n° 2016-1058) completed by the decree of August 11th 2016 (n° 2016-1110)
- Directive 2011/92/EU of the European parliament and of the council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment
- Article R. 122-2 of the Environmental Code
- Government Ordinance of August 3rd 2016 (n° 2016-1060); This Ordinance is to be completed by a decree that has not been published to date.
- Article L. 123-4 of the Environmental Code
- Article L. 123-13 I. of the Environmental Code
- Article L. 123-15 of the Environmental Code
- The ordinance and decree have been published on January 27th 2017. The measures enter into force on March 1st 2017, although project holders may choose to apply the former procedure until June 30th 2017.
- Since March 2014, experiments of integrated authorization procedures have been carried out in several departments.