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At the end of a three-year trial period in several regions, thesingle environmental authorization procedure is the latest major reform to be implemented by the Ministry of the Environment during the five-year period just ending. Presented as a new simplification measure for businesses, this procedure nevertheless raises a number of questions, and will require the support and mobilization of all the departments involved to achieve its objectives.
Why this new single environmental authorization procedure?
The aim of the Ministry of the Environment is to unify, in a single procedure, the various administrative steps that may need to be taken for a single project. In particular, the aim is to reduce instruction times. To this end, various experiments have been conducted since 2014 in several regions concerning projects subject to authorization under ICPE regulations, water law and/or the Energy Code.
A December 2015 report, based on the work of several ministerial departments[1], gives a mixed assessment of these experiments. The report highlights several positive points: the integration of procedures, effectively shorter instruction times, and the possibility of rejecting the file in advance, avoiding wasted time for both the petitioner and the administration. However, a number of obstacles are also raised, notably pressure on deadlines which "leads departments not to give priority to certain files that deserve it", difficulties in coordinating certain procedures, and poor coordination between the various departments called upon to contribute to the single instruction.
Ultimately, the report recommended several avenues to ensure the long-term viability and effectiveness of these procedures:
- offer project developers the opportunity to discuss their project in advance with the authorities
- put an end to the requirement to submit building permit and operating permit applications simultaneously
- review the procedures for appeals by third parties and operators against prefectoral authorization orders
- make consultation with the departmental committee for the environment, health and technological risks (CODERST) optional
- support government departments in these reforms, by promoting project-based organization
Most of these recommendations have been retained in the single environmental authorization scheme adopted by an ordinance and two decrees on January 26, 2017. Here are the main features of thissingle environmental authorization procedure.
Which projects are covered by the single environmental authorization procedure?
Two main types of project are subject to the new procedure:
- installations, structures, works or activities (IOTA) subject to authorization under the Water Act
- ICPEs subject to authorization
Which authorizations are combined with the single environmental authorization?
The new single environmental authorization can encompass a number of other procedures, including :
- special authorization for nature reserves or classified sites
- exemptions from measures to protect protected species
- land clearing authorization
- declaration or approval for the use of GMOs
- approval for waste processing
- authorization to operate an electricity generating facility
- authorization to emit greenhouse gases (GHG)
On the other hand, the single environmental authorization does not take the place of a building permit, as the two procedures remain perfectly separate, except for onshore wind farms.
This procedure also clarifies the relationship between ICPE and IOTA, marking the end of the automatic "ICPE equals IOTA" system. As a result, whenever a project includes at least one ICPE or IOTA subject to authorization, the environmental authorization procedure is intended to encompass the associated ICPE and/or IOTA subject to the lower registration or declaration regimes.
What should the application include?
Compared with the ICPE authorization application, the main changes are as follows:
- the notice of compliance with health and safety regulations is no longer required
- a non-technical presentation of the file is now required
- depending on the case, the petitioner may be required to submit an impact study or an environmental impact assessment.
For ICPE operators, the appearance of this environmental impact study limits the scope of the impact study exemption introduced in the summer of 2016 for sites not classified as Seveso or IED[2].
What is a project certificate?
Before submitting an application for authorization, the petitioner can ask the prefect to issue a "project certificate".
This certificate makes it possible to specify the regimes and procedures applicable to the project, and to specify the documents required for each stage of appraisal. It can also be used to confirm whether or not an impact study is required, and to propose a specific timetable for the project, replacing the usual deadlines. It is expected to be delivered within two months. The operator has one month to accept the specific timetable proposed by the authorities.
What are the procedural steps?
Phase 1: Pre-investigation
The time allowed for the pre-investigation phase, during which the departments concerned by the project are consulted, is four months. In practice, however, it can be extended by four months by reasoned decision of the Prefect, and suspended in the event of a request for additional information.
Phase 2: Public inquiry
The project is then put out to public inquiry, which takes at least three months to organize and hold.
Phase 3: Procedural decision
Then comes the decision and publicity phase. The expected timeframe for this stage is two months, in compliance with the "silence is equivalent to rejection" rule, and extended by one month in the event of consultation of the CODERST, a consultation now left to the discretion of the prefect. In addition, if a modification to the urban planning documents is in progress, this deadline will also be extended.
What is the relationship with town planning procedures?
From now on, a building permit can be applied for at any stage of the procedure, but cannot be executed until the environmental permit has been issued. In concrete terms, you can demolish a building before obtaining the authorization, but you can't build it.
What happens after the single environmental authorization is issued?
Firstly, there is the possibility of adapting prefectoral requirements at the request of the petitioner or third parties. In both cases, the administration's silence is deemed to constitute rejection after two months.
The deadlines for the expiry of authorizations in the absence of commissioning or interruption of activity have been harmonized, and set at three years for all regimes (authorization, registration and declaration).
What are the latest developments in litigation?
This is a fully contentious appeal, meaning that the judge can annul or validate the act, but also modify it or replace it with a new one. The judge can also annul only a phase or part of the authorization, and defer ruling until an amending authorization has been granted. In this case, the judge must decide what happens to the rest of the authorization.
The petitioner has two months from notification to lodge an appeal. Third parties have four months from posting in the town hall or on the prefecture's website (the six-month period recommended for third parties in the 2015 report has therefore not been followed).
How long does it take to come into force?
The environmental authorization procedure comes into force on March 1, 2017. For projects already launched on this date, the old procedures will apply. However, until June 30, 2017, petitioners will still be able to opt for the old authorization procedure.
The litigation rules are applicable from March1, 2017.
What are the limitations of this system?
A number of questions and obstacles remain as to the expected benefits of this system.
- With regard to the "project" organization of local administrative departments, team training is essential, as the organizational structure adopted to date has been hierarchical rather than cross-functional.
- On the content of the authorization application file: it is possible to question whether it has really been simplified, given the large number of documents required in the file.
- The minimum appraisal period of nine months is far from guaranteed, given the many possible extensions at every stage.
- The possibility of a "third-party expert appraisal", introduced in the final provisions, is a source of concern for petitioners: this request can be made by the Prefect at the petitioner's expense, when the project presents "dangers or inconveniences of particular importance", and can be made at any time during the appraisal process, but also "after the authorization has been issued".
In conclusion, while we welcome the move to provide legal clarity and security, we remain cautious as to whether it will really simplify matters for petitioners.
While some of the obstacles that came to light after the experiment with the single environmental permit have been addressed in the new system, there are still a number of doubts, particularly concerning compliance with forecast deadlines.
[1] Report by CGAAER, CGEDD, CGE, CGEfi and IGA
[2] Site with one or more ICPE headings classified under heading 3000 of the ICPE nomenclature