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17 May 2020
Several texts adopted since the beginning of the public health emergency period linked to the Covid-19 epidemic have had an impact on environmental law, in particular the law on classified installations for the protection of the environment (ICPE).
Version updated on 17 May 2020
This is notably the case of Ordinance No. 2020-306 of 25 March 2020 on the extension of deadlines during the health emergency period and the adaptation of procedures during the same period, and Decree No. 2020-383 of 1 April 2020 derogating from the principle of suspension of deadlines during the public health emergency period linked to the covid-19 epidemic.
Based on article 11 of Law No. 2020-290 of emergency to deal with the covid-19 epidemic, Ordinance No. 2020-306 of 25 March 2020 on the extension of deadlines during the public health emergency period and the adaptation of procedures during that same period (hereinafter the "Deadline Ordinance") has been amended several times since the beginning of the public health emergency, the last of which by Ordinance No. 2020-560 of 13 May laying down time-limits for various procedures during the public health emergency period.
The provisions of the amended Ordinance No. 2020-306 are applicable "to measures which have expired or expire between 12 March 2020 and 23 June 2020" (hereinafter the "Derogation Period").
Thus, contrary to the initially adopted logic,the measures prescribed by the Deadline Ordinance are now de-correlated from the period of the public health emergency,which has been extended up to and including 10 July 2020 by Law No. 2020-546 of 11 May 2020.
Article 2 of the Deadline Ordinance provides that "any act, appeal, legal action, formality, registration, declaration, notification or publication prescribed by law or regulation shall be subject to nullity, sanction, lapse, foreclosure, prescription, unenforceability, inadmissibility, lapse, automatic withdrawal, application of a special regime, nullity or forfeiture of any right whatsoever and which should have been accomplished during the period mentioned in article 1 shall be deemed to have been done in time if it has been done within a period which may not exceed, as from the end of that period, the period legally prescribed for taking action, up to a limit of two months".
As a consequence, the deadline to appeal against environmental permits for which the original appeal deadline expires during the Derogation Period, is postponed to 24 August 2020 inclusive. For example, the period of four months open to third party litigation against an environmental permit regularly published on 1 February and displayed on 2 February 2020, which was due to expire on 3 June 2020, i.e. during the Derogation Period, is, by virtue of the extension provided for in article 2 of the Deadline Ordinance, extended until 24 August 2020.
However, this deadline extension for appeal is not provided for in the case of environmental permits for which the deadline for appeal will expire immediately after the end of the Derogation Period. This will lead to paradoxical situations where older environmental permits will still be subject to appeal, while newer environmental permits will have become definitive. This interpretation is confirmed by the Circular of the Ministry of Justice of 26 March 2020 (Circular presenting the provisions of Title I of Ordinance No. 2020-306 of 25 March 2020 on the extension of deadlines during the period of health emergency and the adaptation of procedures during the same period), in which it is stated in particular that the extension of the deadline does not apply to "time limits for which the term is set beyond the month following the expiry of the health emergency state".
In the absence of specific details on this point, the extension of the deadline for appeal must apply both to contentious appeals by third parties and by operators, as well as to informal or hierarchical appeals by third parties against environmental permits whose initial deadline would have expired during the Derogation Period.
It should nevertheless be recalled, as the Ministry of Justice did in its aforementioned Circular of 26 March 2020, that applicants can always act within the time period initially set for appeals.
Article 8 of the Deadline Ordinance provides in particular that "when they have not expired before 12 March 2020, the deadlines imposed by the administration, in accordance with the law and the regulations, on any person to carry out inspections and work or to comply with prescriptions of any kind shall, on that date, be suspended until the end of the period mentioned in I of Article 1, except where they result from a court decision. The starting point of the periods of the same kind which should have begun to run during the period referred to in Article 1(I) shall be postponed until the end of that period".
However, two limits are provided for in the Deadline Ordinance:
In this respect, Decree No. 2020-383 of 1 April 2020 derogating from the principle of suspension of deadlines during the period of public health emergency linked to the covid-19 epidemic considerably reduces the scope of application of the Deadline Ordinance as it states that, as soon as it comes into force, the deadlines imposed by the administration resume their course, in particular the deadlines concerning the obligation to comply with prescriptions or to carry out controls, analyses or surveillance measures, with the aim of safety, the protection of health and public sanitation and the preservation of the environment (this is in particular the case of all formal notices) or when these deadlines relate to work and prevention measures, reduction and compensation measures prescribed in the context of a derogation for the protection of species.
As a consequence, particularly in the case of classified installations for the protection of the environment, if the deadline for compliance set by a prefectural order giving formal notice to comply with the applicable requirements had not expired before 12 March 2020, it was only suspended until 3 April 2020 and starts to run again on that date.
In the case of a suspension of deadlines, the term resumes to run for the period remaining at the date of suspension.
In any case, it should be noted that Ordinance No. 2020-427 of 15 April 2020 specifies that the provisions of article 8 of the Deadline Ordinance "shall not prevent the administrative authority from exercising its powers to modify or terminate these obligations or, where justified by the interests for which it is responsible, to prescribe their application or order new ones, within the time period it determines. In all cases, the administrative authority shall, in determining the obligations or deadlines to be respected, take into account the constraints of the state of health emergency".
Thus, prefects may, for example, lift or issue orders giving formal notice to comply with the legislation relating to classified installations for the protection of the environment during the state of health emergency; in the latter case, however, the obligations and deadlines must take into account the constraints linked to the state of health emergency.
On the one hand, pursuant to article 7 of the Deadline Ordinance, the period "at the end of which a decision, agreement or opinion of one of the bodies or persons mentioned in article 6 may or must be reached or is implicitly acquired and which have not expired before 12 March 2020 shall, on that date, be suspended until the end of the term mentioned in I of Article 1".
Thus, for example, administrative opinions which must be collected within a given period during the investigation of an environmental permit's file will not be considered as implicitly acquired during the Derogation Period; during this period, the said terms are suspended and will start to run again, starting on 24 June 2020, for the remaining period.
Similarly, the application of article R. 181-42 of the French Environment Code, according to which "silence maintained by the prefect at the end of the deadlines provided for in article R. 181-41 for ruling on the application for environmental permit shall be deemed to be an implicit decision of rejection" is suspended during the Derogation Period, under the conditions described above.
In the same way, a request for authorization to change operator under articles L. 516-1 and R. 516-1 of the French Environmental Code shall not be considered as having been granted if the three-month period set for the prefect to decide expires during the Derogation Period[2]. The three-month period is suspended during the Derogation Period and will resume on 24 June 2020.
On the other hand, the Deadline Ordinance adapts the rules applicable to public inquiries:
"When the delay resulting from the interruption of the public inquiry or the impossibility of carrying it out due to a state of health emergency is likely to have consequences that are difficult to remedy in the implementation of projects of national interest and urgency, the authority competent to organize the public inquiry may adapt the modalities:
1° By providing that the public inquiry in progress shall continue using only dematerialized electronic means. The total duration of the inquiry may be adapted to take into account, if necessary, the interruption due to the state of health emergency. Previously collected observations shall be duly taken into account by the investigating commissioner ;
2° By organizing a public inquiry from the outset conducted solely by dematerialized electronic means".
Thus, for projects of both national interest and urgency, and provided that a delay in the public inquiry may lead to consequences that are difficult to remedy, public inquiries may be dematerialized.
However, where the duration of the public inquiry extends beyond 30 May 2020, article 12 provides for the possibility of returning, for the remaining duration of the inquiry, to the organizational arrangements under ordinary law.
In any event, the public shall be informed by any means compatible with the state of public health emergency of the decision taken on the organizational arrangements for each public inquiry.
The situation of administrative proceedings in progress is not directly regulated by the Deadline Ordinance, but by Ordinance No. 2020-305 of 25 March 2020 adapting the rules applicable before the administrative courts, modified by Ordinance No. 2020-405 of 8 April 2020 adapting various rules applicable before the administrative courts, last amended by Ordinance No. 2020-558 of 13 May 2020.
Ordinance No. 2020-305, as amended, provides in particular that :
(i) the closures of investigations, the date of which was initially set between 12 March 2020 and 23 May 2020 inclusive "are extended by operation of law to 23 June 2020 inclusive, unless extended by the judge"; however, the judge may, "where the urgency or the state of the case so justifies", set a date for the closure of the investigation prior to the date of the aforementioned postponement; in this case, the order for closure of the investigation must state that the postponement does not apply (Article 16, II of Ordinance No. 2020-305 as amended);
(ii) the time limit for the investigative measures prescribed by the administrative courts (for example, to regularize an appeal, to produce a document or written pleadings), whose term expires between 12 March 2020 and 23 June 2020 are automatically extended until 24 August 2020 inclusive, unless the judge sets a shorter time limit on the grounds that "the case is ready for trial or that the urgency justifies it"; in the latter case, the judge must indicate that the postponement does not apply (Article 16, I of Ordinance No. 2020-305 as amended);
(iii) the deadlines for the production of a pleading or an exhibit provided for by a legislative or regulatory text and which end during the Derogation Period, start to run again from the end of this period for their initial duration, up to a limit of two months (article 15 of Ordinance No. 2020-305 which refers to article 2 of the Deadline Ordinance).
The holding of hearings is also adapted, as are the procedures for the transmission of procedural documents and decisions.
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[1] Under the meaning of Article L. 181-1 et seq. of the French Environmental Code.
[2] Pursuant to article R. 516-1 of the French Environment Code: "[...] The application for authorization to change operator, to which are annexed the documents establishing the technical and financial capacities of the new operator and the provision of financial guarantees, shall be addressed to the Prefect.
This application is processed in the manner provided for in Articles R. 181-45 and R. 512-46-22.
For the installations mentioned in 1°, 2° and 5°, the opinion of the competent departmental consultative commission is not required. In the absence of notification of an express decision within a period of three months, silence kept by the Prefect shall be deemed to constitute an authorization to change the operator".
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