France

• Author: David Desforges
• Pages: 521-546

CHAPTER 28

France

DAVID DESFORGES

I. Institutional Framework

A. Constitutional Charter of the Environment

and Statutory Affirmation of Principles

In 2005, France adopted the 2004 Charter of the Environment affirming

“one’s right to live in a balanced and healthy environment.”1 As a conse-

quence of the “constitutionalization” of environmental protection, French

laws must abide by principles affirmed by the Charter. Most French environ-

mental laws are transposed from norms established at the European Union

(EU) level. For its part, the French Environmental Code establishes the fol-

lowing key environmental principles:2 (1) precautionary principle, (2) pre-

ventive action and corrective action at the source principle, (3) polluter pays

principle, (4) the freedom of access to environmental information principle,

and (5) the public participation principle (in environmental decision mak-

ing). These constitute guiding principles for the enactment of specific envi-

ronmental legislation and must be complied with by subordinate regulatory

and administrative acts (i.e., decrees, ministerial orders, individual permits).

The Environmental Code further adopts five sustainable development objec-

tives:3 (1) the fight against global warming; (2) the preservation of biodiver-

sity, open spaces, and resources; (3) social cohesion and solidarity among

territories and generations; (4) the self-development of all human beings;

and (5) the promotion of development patterns based on responsible pro-

duction and consumption models.

B. Role and Impact of EU Legislation on the Formation

of Domestic Environmental Law

With the establishment of environmental protection by the 1992 Treaty on

European Union in Maastricht, the Netherlands, as an objective of para-

mount importance,4 EU legislation in the area of environmental protection is

now abundant. EU legislation is not always automatically applicable in EU

521

member states (with the notable exception of European Community regula-

tions); the obligation of member states is to transpose EU directives into

domestic law to ensure the proper domestic enforcement of EC obligations

through the adoption of complementary legislation or regulations.

C. Domestic Sources of Environmental Law

The Environmental Code represents a continuous effort to organize, compile,

codify, and update with new laws and regulations about 200 years of envi-

ronmental law.5 The Environmental Code is therefore regularly updated as

environmental laws and regulations are being modified to accommodate EU

environmental law obligations. Some decrees and ministerial orders remain

uncodified and “survive” under their original headings. Additionally, the

Environmental Code is not the only source of provisions regarding environ-

mental protection. Numerous other environment-related provisions are to be

found, for example, in the Public Health, Planning, Labor, Rural, and For-

estry Codes. It is therefore always advisable not to limit inquiries to the

Environmental Code alone.

D. Parliament and Government Prerogatives

The Parliament votes on proposed statutes relating to the protection of the

environment. In most instances, such laws actually transpose EU directive

objectives, arguably limiting the latitude that French lawmakers enjoy. The

government promulgates regulations supplementing such laws and gener-

ally transposing the more technical aspects of the directives or, where rel-

evant and necessary, independently of any EU requirement.6 In some

circumstances, based on a desire to increase efficiency, the government may

request from the Parliament the authorization to legislate through ordi-

nances (ordonnances), which constitute substantive statutory provisions

enacted by the government.7 In recent times, this procedure has often been

used to enact environmental legislation.8

E. Permitting Procedures

Despite decentralization (a move initiated in the early 1980s to transfer pre-

rogatives and decision making from the national government to the regional

departments and regions (départements and régions)),9 France remains central-

ized. Unsurprisingly, environmental protection powers therefore remain

essentially vested with the national government. As a consequence thereof,

permitting is essentially a prerogative of the national government. The

authority issuing operating permits for activities is generally the Préfet (i.e.,

the representative of the national government in each département). Several

exceptions do apply, however. For example, military installations operate

under permits issued by the Minister of Defense10 while nuclear installations

operate under permits issued by the minister in charge of the nuclear indus-

try. Pipeline permits are issued either by the minister in charge of such

522 INTERNATIONAL ENVIRONMENTAL LAW