French Administrative Supreme Court Specifies The Conditions For The Regularization Of Environmental Authorizations

• Law Firm: Soulier Avocats
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Court Procedure, Trials & Appeals & Compensation
• Author: Ms Laure Marolleau
• Published date: 19 April 2023

In a ruling issued on March 1, 2023¹, the Conseil d'Etat (French Administrative Supreme Court) clarified the conditions under which the administrative judge exercises his/her power to stay proceedings for the purpose of correcting the defects of an environmental authorization.

In a prefectoral order dated July 29, 2019, the préfet (local representative of the Government)of the Deux-Sèvres department granted to the company Ferme éolienne de Saint-Maurice an environmental authorization for the implementation and operation of a wind park comprising 6 wind turbines on the territory of the Saint-Maurice-Etusson municipality.

Following an appeal lodged by a local resident, the Bordeaux Administrative Court of Appeals annulled in part the authorization insofar as it did not include the derogation from the prohibition on the destruction of non-domestic animal species and their habitats provided for under Article L. 411-2 of the French Environmental Code, suspended the enforcement of the order until the issuance of this derogation and ordered the stay of the proceedings in order to allow Ferme éolienne de Saint-Maurice to correct another defect relating to the deficiencies of the ecological part of the impact study on chiropterans.

Ferme éolienne de Saint-Maurice appealed against this decision before the Conseil d'Etat.

Stay of proceedings pending the regularization of the impact study

Article L. 181-18, I, 2° of the French Environmental Code provides that:

"The administrative judge who, asked to examine a request against an environmental authorization, considers, after having noted that the other legal arguments developed are groundless, even after the completion of the works: (...) that a defect resulting in the unlawfulness of this authorization is likely to be corrected, shall stay the proceedings, after having invited the parties to present their observations, until the expiry of the period of time that he/she fixes for this regularization to be achieved. If the judge is notified of a regularization measure within this period of time, he/she shall rule after having invited the parties to present their observations."

According to a well-established case law, "inaccuracies, omissions or deficiencies in an impact study are only likely to vitiate the procedure and, therefore, to result in the unlawfulness of the decision taken on the basis of this study if they could have had the effect of adversely affecting the provision of comprehensive information to the...