A recent Environmental Code amendment aims to invigorate sluggish legal processes delaying environmental project development.

By Paul A. Davies and Fabrice Fages

Third parties and local NGOs often bring legal action against environmental permits in France, hampering the development of environmental projects in the country. An example of a practical consequence is that the development of a wind farm takes on average between seven and nine years in France, versus three to four years in Germany. In order to limit the impact of drawn-out legal proceedings before administrative courts and allow projects to progress, a 2017 amendment to the Environmental Code (article L.181-18) now affords administrative judges broader powers to give more time and leeway to the authorities to correct a flawed decision or part of a decision before the court simply annuls it.

Background

On March 22, 2018, in a case involving the judicial review of the environmental operating permit of a dairy farm, the Conseil d’Etat (the highest administrative court) commented on the scope and practical consequences of article L.181-18 in a landmark advisory opinion. The Conseil d’Etat issues such opinions (avis) if a lower administrative court refers “a serious legal issue arising in multiple pieces of litigation” to the Conseil d’Etat. Although these opinions are not binding, they usually form part of the Conseil d’Etat’s own jurisprudence on the relevant issue, while lower courts and administrative authorities will tend to closely comply with and abide by them.

The Conseil d’Etat’s opinion comprehensively sets out the options available to administrative judges when considering whether to annul a permit. This should lead to more sensible solutions as the courts will be able to give the authorities time to correct the flaw, rather than having to simply annul the permit. Environmental project developers and legal advisers alike will find this guidance particularly relevant.

Flawed permits: stay of proceedings

If the court considers that a flaw (usually procedural) affects a permit, the court may issue a preliminary ruling whereby it sets out the procedure and timeframe according to which the authorities must rectify the flaw. The court proceedings are stayed during this process. If the authorities rectify a flaw through a complementary decision (marginal amendments without a public inquiry) the court will then dismiss the matter.

Partial permit annulment

If a court annuls a permit, this may affect all or only the divisible parts of a permit. If the court determines that one of the three phases of the permitting procedure — review of the application, public inquiry, and decision — is flawed, it may decide to not stay the proceedings and move to annul the permit in full or in part.

If this is the case, however, the court has a duty to indicate which phase of the procedure is flawed to ease the authorities’ task of correcting the error.

Permit suspension

If a court annuls or stays the proceedings regarding the flawed part of a permit, that court remains competent to decide whether suspending the effects of the valid parts of such permit is also necessary. This suspension allows time for the authorities to fix the flawed parts of the permit.

Interestingly, if a court annuls a permit in full or in part, the court enjoys the unusual prerogative to act as if it were in the shoes of the authorities. Subject to conditions that the court itself sets out, the court may therefore authorize the operation of the installation pending the authorities issuing a new permit.

In doing so, and regardless of whether the permit has been suspended or whether a temporary one has been issued, the court will consider the circumstances of the matter at hand. Specifically, this includes the economic, social, or any other general interest factors likely to justify the continuation of the activities, as well as the resultant potential harm to the environment.

Applicable rules

If a flaw is one of form or procedure rather than substance, the competent authority will apply provisions that were in force when the decision was taken to resolve the matter. However, if a flaw relates to the merits of the decision, the competent authority will apply the provisions in force on the date it issues the complementary decision referred to above.

Finally, public availability of information is a key factor in this context. Therefore, if a flaw relates to an element which should have been communicated to the public and was not, the court will assess whether the flaw was in fact detrimental to the public’s ability to assess the merits of a project. If so, the court may order that the public receives adequate information for the flaw to be cleared.

Latham will continue to monitor the effect of the amendment.

This post was prepared with the assistance of David Desforges, Avocat à la Cour in Paris and Olivia Featherstone at the London office of Latham & Watkins.