The law for the shortening and simplification of the Public Action (SSPA) has been published in the Journal Officiel on December 8th, 2020 after having been partially validated by the Conseil constitutionnel in the n°2020-807 DC decision from December 3rd, 2020. That law aims to simplify procedures and thus to shorten the public action, which necessarily impacts the environment. So as to legislate on that subject, the legislator has mostly used the report Five project to simplify and shorten industrial installation by M. Kasbarian, Member of Parliament.
First, the law “SSPA” has come to reinforce the legal security of projects waiting for authorization.
From now on, article 34 has widened to on-going projects the benefits from article L.512-5 of the Code de l’environnement. Thus, if new general rules and technical measures appear, the ministerial ruling will have to set up deadlines and conditions of application for existing installations but also for those under construction, the new norms in terms of security, health or public health being now the only norms with immediate effect. That same article also states that all new measures in terms of structure can’t be applied to on-going projects. Article 36 of the law will guarantee, for the petitioner, that the only applicable regulation in terms of preventive archeology will be the one in force at the moment of the reception of the application file. The legislator thus chose to favor the good continuation of a project rather than apply progressively a regulation which could offer a better protection of the environment.
Article 43 will reduce to two months the deadline to ask for the organization of a preliminary concertation on a project, a plan or a development program, diminishing the right to initiate of territorial collectivities, associations and inhabitants. Article 39 states on its part that, if a project modifies in a substantial way the quality of life or the economic activity and is within the scope of article L.130-2 of the code de l’urbanisme but also of article L.121-12-1 of the code de l’environnment, then the project manager will be able to submit his project only at the concertation imposed by the code de l ‘environnement, thus deleting the necessity to have two concertations. The legislator reduces the possibility for third parties to inform themselves and to participate in the decision-making process for projects that will be built on their territory.
At the same time, article 37 reassure the petitioner by stating that the advice of the environmental authority can’t go back on elements already authorized during the actualization of the impact study, new measures being only made for new elements. Thus, once the authorization is delivered and even if the impact study is actualized and underlines a new risk from authorized elements, the prefect won’t be able to change already authorized measures.
In terms of procedures, articles 56 and 57 have come to lessen those concerning the partial transfer of an authorization to a third party, the 57 lessening it when the substitution between third parties intervenes during an operation if the future use is the same as the one approved by the prefect. Article 56 authorizes the partial transfer of an environmental authorization to a third party if there are no substantial modifications nor threats to interests protected by the code de l’environnement and if it’s possible to identify the measures that are addressed to each beneficiary.
In the matter of shortening the deadlines for procedures, the law SSPA has given more power to prefects.
Article 44 states that the prefect can adapt the procedure of public consultation for projects necessitating an authorization but not needing an environmental evaluation. He has the choice between an on-site or an online public enquiry. Article 56 also gives him the power to authorize, in some cases, the execution of a building permit, a developing permit or a permit to destroy as well as a decision of no objection against anticipated declaration before the issue of the environmental authorization, allowing the start of some works in an anticipated manner.
However, some problems in terms of environment protection arise with that shortening, especially in terms of public participation with the choice now left to the prefect. Conducting the public consultation online necessarily leads to a restricted access to the inquiry even though the Conseil constitutionnel has ruled that that article was faithful to the Constitution. Moreover, to authorize works to begin before the issue of the environmental authorization has been obtained is an important risk for the environment and is against the protection of the interests that the code de l’environnement was made to protect.
For the closure of activity’s procedure, a new obligation has been created and a new deadline has been implemented.
In fact, article 57 adds a new obligation for a CIPE (Classified Installation for the Protection of the Environment) operator, they will have to obtain from a certified company a certification on the quality of the safety procedures and industrial sites’ rehabilitation measures. Moreover, expenses invested by the State for the rehabilitation of a site after an accidental situation will be at the expense of the industrial responsible for the risk, it’s a concrete enforcement of the ‘polluter pays’ principle. Article 58 creates the possibility for the prefects to set a deadline for the rehabilitation of a CIPE’s site that has been definitely closed.
Adding the certification obligation for rehabilitation works seems to be a good idea even though the text is not precise enough in terms of the type of companies that would be authorized to deliver such a certification, which could empty those articles of sense, leading to an ineffective certification. However, the concrete enforcement of the ‘polluter pays’ principle against the person responsible for the risk having led to an accidental damage is another protection of the environment even though we have to regret that this enforcement only works in case of accident.
For wind turbines, the SSPA has modified the regulations with its articles 53 and 55.
Article 53 adds, for projects to install wind turbines onshore, the obligation to transmit to the mayor of the territory upon which the turbines will be installed and to the mayors of neighboring cities a preliminary draft at least a month before the submission of the environmental authorization request. Article 55 states that, for wind turbines offshore, a unique public consultation is possible on multiple area of potential implantation but also that the realization of competitive procedures alongside the inquiry process is possible. We must however note that the competitive dialogue phase must wait for the submission of the public inquiry report. That article also gives exclusive jurisdiction to the Conseil d’Etat to hear all disputes against that kind of wind turbines, as a first and as a last resort.
Here, there are two main points to discuss. First, on the matter of information, mayors will have a better idea, and sooner, of the onshore wind turbine project, it’s another constraint for the petitioner but it also seems quite light since no penalty nor obligation except a deadline is attached to that new obligation. In terms of offshore projects, the information will be less efficient with a unique consultation about multiple possible implantation sites, that article necessarily lessens the impact of negatives comment by majoring the uncertainty of the real implantation site. Then, the exclusive jurisdiction given to the Conseil d’Etat in terms of actions against the implantation of offshore wind turbines farms can be seen as a threat to the right to challenge administrative decisions but also as a way for the State to ensure those implantation. If the same Court has jurisdiction to hear all degrees of action, if it has jurisdiction to judge the appeal of its own decision, then this necessarily harms its impartiality, a Court denying its own judgement is unseen.
In conclusion, that SSPA law has fulfilled its purpose because it does create a true simplification of procedures which entails, by fact, a greater insecurity in terms of protection of the environment. Of course, improvements have been noted but the freedom left to petitioner so as to ensure a better recovery of the industry in France can’t be ignored.