Environment: When prefects make the law


On Wednesday, May 27, four associations, Friends of the Earth France, Notre Affaire à Tous, Wild Legal and Maiouri Nature Guyane filed an appeal before the Council of State to obtain the annulment of the decree of April 8, 2020, which generalizes the right of prefects to derogate from many regulatory standards, particularly in environmental matters.

This decree, adopted in full confinement, allows prefects to derogate from and thus circumvent existing regulatory standards in order to take decisions in a wide range of areas, such as spatial planning, construction, housing, town planning, employment, the granting of subsidies, but also the environment. In the midst of the health crisis, this decree weakens environmental law in favour of a future economic recovery, as stated on 8 April 2020 in an communicated the Minister of the Interior, Christophe Castener, "to facilitate the recovery of our country". 

The decree extends to the whole of France, under the guise of deconcentration, a procedure introduced on 29 December 2017 on an experimental basis in certain departments and regions, which Friends of the Earth France had already requested to be cancelled, as well as the National Union of Environment Union - FSU who wondered on the consequences that this experimentation could have and its possible generalisation.
This decree includes the same safeguards: to derogate from regulatory standards, the prefectoral order must be justified by a public interest reason, respond to local circumstances and be compatible with France's European and international commitments. It must also "have the effect of lightening administrative procedures, reducing procedural delays or facilitating access to public aid".

At least 183 derogatory decrees were then adopted, including many worrying cases: this period of experimentation notably allowed the installation of a methanisation unit in a protected area in the Yonne, or the construction of a dam and a wind farm in the Vendée, overriding the obligation to carry out an environmental impact study. Another example, this order of 22 May 2020 "establishing a temporary derogation for the aerial application of plant protection products for vines in the departments of Aude and Hérault": a  helicopter application of fungicides on the vineyards of Aude and Hérault, whereas since 2010, the law prohibits the aerial spreading of phytosanitary products and punishes any offender with six months imprisonment and a fine of €150,000, as provided for in the offence mentioned under Article L. 253-17 of the Rural and Maritime Fishing Code.
The Confédération Paysanne de l'Aude reacted: " Contrary to the message that the Winegrowers' Union, Coop de France and the Independent Winegrowers would like to get across, these aerial treatments are far from unanimous in the profession. Beyond the questionable cost and effectiveness, many winegrowers are concerned about the image conveyed by this initiative for Languedoc wines. The mobilization of the chambers of agriculture of the Aude and Hérault on this issue is totally disproportionate to the expectations of winegrowers who are facing economic problems due to the Covid crisis. As for the government, we are unfortunately no longer surprised by its lack of credibility in wanting to lead an ecological and solidarity transition, so many times displayed, so many times flouted. The Confédération paysanne is still considering taking the matter to the administrative court with France Nature Environnement and ECCLA. "

The decree of 8 April now grants all prefects this power of derogation without any time limit.

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For Louis Cofflard, member of the Federal Council of Friends of the Earth France and lawyer of the appeal: "For Louis Cofflard, member of the Federal Council of Friends of the Earth France and lawyer of the appeal: " This decree freezes in ordinary law, without any minimum information or consultation of the public, a retrograde regulatory mechanism leaving it up to the arbitrary decision of each prefect to guarantee an unequal application of environmental law."

For Chloé Gerbier, a lawyer from the association Notre Affaire à Tous: " In a period of "economic recovery", when polluting projects are likely to multiply, this decree can be devastating in environmental terms. Indeed, under the guise of general interest and accelerated procedure, certain projects may be exempted from the authorisation procedure, and therefore sometimes even from the impact study. "

This procedure is particularly dangerous in certain territories that are already subject to strong pressure from industrialists. In French Guiana, the anti-mine activists of the collective Or de question and the Maiouri Nature Guyana association are very concerned about this trend as mining companies are putting increasing pressure on the administration to obtain new permits, pushing polluting projects in a context of post-confinement economic recovery, particularly the mining projects in French Guiana.

Marine Calmet, a lawyer for the Maiouri Nature Guyana and Wild Legal associations confirms: "Marine Calmet, a lawyer for the Maiouri Nature Guyana and Wild Legal associations confirms: " This new decree is a perfect illustration of the deadly trend of unravelling environmental law currently underway in France."

Despite the direct and serious dangers of this text in ecological terms, neither the environmental authorities nor the public were consulted prior to the adoption of the decree.

Moreover, such a scheme is deeply unconstitutional. On the one hand, the project holders who will obtain exemptions will necessarily be those who succeed in presenting their case to the prefect, and identical projects would be subject to different obligations depending on the department, which calls into question the principle of equality before the law.
On the other hand, the decree does not respect the separation of powers, as it allows the executive - the prefect - to issue, on a case-by-case basis, "exemptions" from legislation that are usually the preserve of the legislature.
Finally, the imprecise wording of the Decree and its broad scope of application run counter to the objective of clarity and intelligibility of the law. 

This shift in environmental standards suggests that behind the rhetoric and various fora advocating for an green recovery or for set the environment at the heart of the economic recovery."In our country, consistency is not a given. 

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In my opinion, appeals against prefectoral decrees will have a better chance of succeeding than against the decree. For example, for the principle of equality, different situations can be treated differently. Or the objective of clarity and intelligibility does not apply to a decree, but to the law?

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