Critics see it as an early 2018 gift for concrete suppliers and those whose actions pollute natural underground water reserves. Since January 1st state officials in some regions of France have been authorised to depart from the usual regulatory standards in relation to projects concerning the environment, farming, forests, local development, urban policy and house-building. Indeed, the list of subjects covered by the relaxation in rules is so broad that it is hard to see what, if any, limits there are.
The changes came in an official government decree published on December 9th, 2017, as a pilot scheme aimed at the prefects or state officials in the Pays de la Loire region in western central France, Bourgogne-Franche-Comté in east France, the overseas territory of Mayotte in the Indian Ocean, the Lot and Creuse départements or counties in south-west France, the Bas-Rhin and Haut-Rhin départements of north-east France and the French Caribbean territories of Saint-Barthélémy and Saint-Martin. The decree states that state officials are allowed to go against the normal rules for “reasons in the general interest”.
Mediapart understands that the trial scheme could be extended to the whole of France as part of the current legislation on simplifying administrative life in France that has been approved by MPs and is now heading to the French Parliament's second chamber, the Senate.
Though on the face of it the reference to 'in the general interest' seems a good thing, it has sent a shudder through environmental lawyers consulted by Mediapart. They say this term has been used for years to justify the concreting over of land and the destruction of biodiversity. This particular pilot scheme concerns unregulated decisions such as permissions for a company or individual to install equipment or structures, or declarations that a project is judged to be of 'public utility', for example. Nonetheless, though unregulated these projects still have to comply with France's European and international commitments. The stated objective of the decree is to “take into account local circumstances”, to “lighten the administrative process”, to “reduce procedural delays” and to “favour access to public aid”.
However, Florence Denier-Pasqieur, a legal expert at the environmental group France Nature Environnement (FNE), describes the decree as a “very bad signal” which increases an already strong trend towards the “unravelling” of environmental laws. “Given the breadth of the issues concerned by this decree, we have never seen such a weakening of the legal framework. It's so huge. What remains that is still covered by the well-established national rules?” she asks. Daniel Ibanez, a transport expert at the French section of Friends of the Earth, is also worried. “In the name of the general interest, the state is allowing itself to depart from its own rules, which were by definition made in the name of the general interest. It's absurd and dangerous,” he says.
An evaluation report is supposed to be sent to the government in the final months of the pilot scheme to measure the decree's effectiveness. But critics wonder just how quickly and even whether this will be done. Transport legislation already states that within two to five years of any publicly-funded infrastructure project there must be a report on its economic impact. But Daniel Ibanez points out that the report on the A43 motorway in the French Alps – known in France as the Autoroute de la Maurienne – was 16 years late. Meanwhile the impact studies on the Pau-Langon motorway in south-west France and the Perpignan-Figueras high-speed railway in south-east France were each two years late.
Lawyer Alice Terrasse, who has worked to stop the plans for a dam at Sivens in south-west France, says that certain areas such as the awarding of grants and the support of local economic players “perhaps deserve more local handling”. But she adds: “This is not the same with other domains such as the environment which, on the contrary, require the uniform application of rules adapted to the needs of the nation's territory and which cannot be departed from simply by a decree, for example to satisfy economic interests.”
For the FNE, Florence Denier-Pasqieur the decree raises a question of “equality before the law”. She also says it is likely to be hard to implement because the text is “unclear”. Therefore, she says it is not really a simplification of the law and risks becoming unwieldy. “Let's remember that 80% of environmental law comes from European law. Respecting European commitments (environmental impact studies, an obligation to respect their results, a limit on derogations) will, on paper, limit many of the possibilities for applying this decree,” she says. “In fact some trials might create a real lack of judicial certainty, contrary to the stated aim.”
The union branch that represents employees involved in environmental work, the Syndicat National de l’Environnement-FSU, has now written to the environment minister Nicolas Hulot to warn him of the consequences of the derogation for public sector workers. They point out in the letter that as part of their job staff seek to find a way of adapting a decision to local needs without undermining national policy objectives and that this approach is what it highlights the “value” of the links between decentralised agencies and the ministry in Paris. The branch's national secretary Patrick Saint-Léger queries, for example, what will happen over demands for permits and authorisations in relation to legislation protecting the nation's water courses. “Every construction near a water course is affected by this derogation, as well as the largest industrial farms,” he says. “We've already noticed some local situations where, in the name of employment, prefects act more as planners than protectors of the environment. Not every village meets sanitary obligations. Where will such an explicit derogation from the law lead?”
Nicolas Hulot's office insists that the minister has been consulted on the decree and officials insist that several parallel guarantees were put in place. Each derogation from the rules must be justified, while the trial period itself is limited in both time and geography. Finally, says his office, a cost-benefit analysis must be carried out on the impact of the derogation.
Mediapart also contacted the office of interior minister Gérard Collomb at the Ministry of Interior, which is responsible for the decree, but there was no response. Overseas minister Annick Girardin, who also signed the decree, explained that the aim behind the move was to simplify standards in the light of so many different rules, and to get around inappropriate constraints. “The objective is to simplify citizens' lives,” she says. She adds: “Decisions will be taken case by case. We're not creating a downgraded application of the law, it will still be under the control of a judge.” The French Caribbean communities of Saint-Barthélémy and Saint-Martin were added to the trial because of their particular reconstruction needs after they were hit by Hurricane Irma in September 2017.
When last month prime minister Édouard Philippe announced that the controversial plans to build an airport at Notre-Dames-des-Landes near Nantes in west France were being abandoned, he insisted that other infrastructure projects would continue to be built across the country. Critics fear that with this decree the government has given itself unprecedented latitude to carry this out.
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- The French version of this article can be found here.
English version by Michael Streeter