France Nature Environnement (FNE) has asked the Conseil d'État to annul the decree that exempts small-scale development projects (buildings, infrastructure, roads, etc.) from the obligation to carry out an upstream environmental assessment. The Conseil d'État considers that this measure is contrary to European law because small-scale projects can also have an impact on health or the environment, depending on the nature of their activities or their location. The Conseil d'État has therefore ordered the Prime Minister to amend the decree within nine months to ensure that all projects having an impact are properly assessed.
According to European law1, both public and private development projects that may have a significant impact on health and the environment must be the subject of an upstream environmental assessment. To determine the relevant projects, the EU directive specifies that different criteria should be taken into account: the characteristics of the project (size, use of natural resources, waste generated, pollution, etc.), its location and its potential impact (scale, reversibility, etc.).
Transposed into French law, this environmental assessment of projects was in particular the subject of a Government decree dated 4 June 20182. This decree specifies thresholds to target the projects concerned, however these thresholds only take into account the scale of the project (size, capacity of the installation) and exempt those below the threshold from the obligation to carry out such assessments. The Conseil d'État therefore considers that in only making projects above these thresholds subject to the environmental assessment process, the decree excludes small-scale projects that could nevertheless have a significant impact on the environment due to their specific features or their location.
The Conseil d'État has therefore given the Prime Minister nine months in which to review the criteria for exempting a project from the environmental assessment obligation in order to ensure that all projects with a significant impact are required to carry out such an assessment.
1 Directive 2011/92/EU of 13 December 2011
2 Decree no. 2018-435 of 4 June 2018