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Following a three-year trial period in several regions, thesingle environmental authorization represents the final major reform introduced by the Ministry of the Environment during the outgoing five-year term. While presented as a new simplification measure for businesses, this procedure raises several questions and will require the commitment and mobilization of the reviewing departments to achieve its goals.
Why this new single environmental authorization procedure?
The Ministry of the Environment's goal is to consolidate the various administrative steps that may be required for a single project into one unified procedure. This is intended, in particular, to reduce processing times. To this end, various pilot programs have been conducted since 2014 in several regions for projects subject to authorization under ICPE regulations, water legislation, and/or the Energy Code.
A December 2015 report, based on the work of several ministerial departments[1], provides a mixed assessment of these trials. The report highlights several positive aspects: the integration of procedures, effectively shorter processing times, and the ability to reject applications early, avoiding wasted time for both the applicant and the administration. However, several obstacles are also raised, notably pressure on deadlines which "leads departments to not prioritize certain files that would deserve it," difficulties in coordinating certain procedures, and poor coordination between the various departments called upon to contribute to the single review process.
Ultimately, the report recommended several avenues to ensure the sustainability and effectiveness of these procedures:
- offering project sponsors a preliminary discussion with the administration
- ending the requirement to simultaneously file the building permit application and the operating authorization request
- revising the procedures for third parties and operators to appeal prefectural authorization decrees
- making consultation with the Departmental Committee for the Environment, Health and Technological Risks (CODERST) optional
- supporting state services in these reforms by promoting a "project-based" organizational approach
Most of these recommendations were incorporated into the single environmental authorization framework adopted via an ordinance and two decrees on January 26, 2017. Here are the main features of thissingle environmental authorizationprocedure.
Which projects are subject to the single environmental authorization procedure?
Two main types of projects are subject to the new procedure:
- installations, structures, works, or activities (IOTA) subject to an authorization regime under the Water Act
- ICPE (installations classified for environmental protection) subject to the authorization regime
Which authorizations are consolidated under the single environmental authorization?
The new single environmental authorization allows for the inclusion of several other procedures where applicable, including:
- special authorization for nature reserves or classified sites
- derogations from protected species conservation measures
- land clearing authorization
- declaration or approval for the use of GMOs
- approval for waste treatment
- authorization to operate an electricity generation facility
- greenhouse gas (GHG) emission permit
However, the single environmental authorization does not replace a building permit; the two processes remain entirely separate, except for onshore wind farms.
Furthermore, this procedure clarifies the relationship between ICPE and IOTA, ending the automatic "ICPE equals IOTA" rule. Consequently, as soon as a project includes at least one ICPE or IOTA subject to authorization, the environmental authorization procedure is intended to encompass associated ICPEs and/or IOTAs that fall under lower registration or declaration regimes.
What is the required content for the application file?
Compared to the ICPE authorization application file, the main changes are as follows:
- a compliance notice regarding health and safety regulations is no longer required
- A non-technical summary of the application is now required
- Depending on the case, an impact assessment or an environmental impact study may be requested from the applicant
For ICPE operators, the introduction of this environmental impact study limits the scope of the impact assessment exemption introduced in the summer of 2016 for non-classified sites Seveso or IED[2].
What is a project certificate?
Before submitting an authorization request, the applicant may ask the prefect to issue a "project certificate."
This certificate clarifies the regulations and procedures applicable to the project and specifies the documents required for each stage of the review process. It can also confirm whether an impact assessment is necessary and propose a specific project timeline for the operator, replacing standard legal deadlines. The expected issuance time is two months. The operator has one month to accept the specific timeline proposed by the administration.
What are the stages of the procedure?
Phase 1: Preliminary review
The expected timeframe for the preliminary review phase, which allows for consultation with the departments concerned by the project, is four months. In practice, however, it may be extended by four months by a reasoned decision of the prefect and suspended if additional information is requested.
Phase 2: Public inquiry
The project is then submitted for public inquiry, with a minimum period of three months allocated for the organization and conduct of the public inquiry.
Phase 3: Decision procedure
Then comes the decision and public notification phase. This step is expected to take two months, following the "silence equals rejection" rule, with an additional month if the CODERST is consulted—a consultation now left to the prefect's discretion. Furthermore, if urban planning documents are currently being amended, this timeframe will also be extended.
How does this coordinate with urban planning procedures?
From now on, a building permit application can be submitted at any stage of the procedure, but it cannot be executed until the environmental authorization has been granted. In practical terms, you may demolish before obtaining the authorization, but you cannot build.
What are the possible next steps after the single environmental authorization is granted?
First, there is the possibility of adjusting the prefectural requirements at the request of the petitioner or third parties. In both cases, silence from the administration after two months is considered a rejection.
The expiration periods for the authorization in the event of a failure to commence operations or an interruption of activity have been harmonized and set at three years for all regimes (authorization, registration, and declaration).
What are the developments regarding litigation?
This is a full jurisdiction appeal, meaning the judge can annul or validate the act, but also modify it or substitute a new one. The judge may also choose to annul only a phase or part of the authorization and stay the proceedings until a modified authorization is issued. In such cases, the judge must specify the status of the remainder of the authorization.
The appeal period for the petitioner is two months from the date of notification. Third parties have four months from the date of posting at the town hall or on the prefecture's website (the six-month period recommended for third parties in the 2015 report was therefore not adopted).
What are the effective dates for the new system?
The environmental authorization procedure comes into effect on March 1, 2017. For projects already underway by that date, the old procedures apply. However, until June 30, 2017, petitioners retain the option to choose the old authorization procedure.
The litigation rules are applicable as of March 1st , 2017.
What are the potential limitations of this system?
Several questions and obstacles remain regarding the expected benefits of this mechanism.
- Regarding the "project-based" organization of local administrative departments: staff training is essential, as the organizational model used until now has been hierarchical rather than cross-departmental.
- Regarding the content of the authorization application file: one may question the actual simplification, as the number of documents required remains just as high.
- As for the planned minimum processing time (nine months), this is far from guaranteed, given the multiple extensions possible at every stage.
- The possibility of a "third-party expert review" introduced in the final mechanism is a source of concern for applicants: this request can indeed be made by the prefect at the applicant's expense when the project presents "dangers or inconveniences of particular importance," and it can occur at any time during the review process, as well as "after the authorization has been granted."
In conclusion, while we welcome the intent to provide legal clarification and security behind this mechanism, we remain cautious about the actual simplification for applicants.
While some obstacles highlighted after the trial of the single environmental authorization have been addressed in the adopted mechanism, several doubts persist, particularly regarding compliance with projected timelines.
[1] Report from the CGAAER, CGEDD, CGE, CGEfi, and IGA
[2] Site including one or more ICPE categories classified under a 3000 category of the ICPE nomenclature