An extract from The Environment and Climate Change Law Review, 4th Edition

Environmental protection

i Air quality

Air quality management must be distinguished from emission control even though regulation of emission sources is necessary to achieve quality standards.

Article L. 220-2 of the Environmental Code defines atmospheric pollution. The right of everyone to breathe air that does not harm their health has been set out in Act No. 96-1236 of 30 December 1996, known as the LAURE Act, and is listed in Article L. 220-1 of the Environmental Code. This principle has been constitutionalised and enshrined in the environmental Charter. In France, the number of deaths attributable to air pollution is at least 45,000 per year, according to the European Environment Agency.

The plan for the protection of the atmosphere's measures (PPA) must be elaborated by the prefect in agglomerations of more than 250,000 inhabitants. This plan also aims to implement traffic restriction measures. In February 2018, France sent the European Commission the elements of its action plan, which aims to guarantee breathable air for all French people. The prefects of the areas affected by the exceeding of the pollution thresholds were to present on 31 March 2018 the roadmaps prepared with all stakeholders to define the new short-term actions for a quick return to below the regulated thresholds. The Commission brought an action before the Court of Justice of the European Union against France for 'non-compliance with the limit values for nitrogen dioxide (NO2) and for failure to take appropriate measures to shorten the periods of exceedance as much as possible'. France must review its solutions to fight the sources of atmospheric pollution.

ii Water quality

Water law in France is characterised by its complexity because both the statute and legal regime are related to the right of ownership. Under the Civil Code, water is considered a common good. The legislator did not elaborate a water code, and there is no legal definition of the term 'right to water'. The legal regime applicable to water is found in several codes. Three important laws have made it possible to establish the basis of a positive right to water. First, the law of 16 December 1961, which establishes the legal framework for regulating the pollution of water resources. Second, the law of 3 January 1992, which allows the harmonisation of the legal regime of water. Finally, the law of 30 December 2006, which recognises the priority use of water for human consumption and establishes a right of access to drinking water. The main texts on this subject are codified in Title 1 of Book II 'Water and aquatic environments' of the Environmental Code. Article L. 211-1 guarantees the principle of balanced and sustainable water management. Article L. 210-1 of the Environmental Code implicitly grants the state the right to organise the use of this water for the benefit of people other than solely the locals.

To this must be added European law, which constitutes an essential source of water law, as well as international conventions. When the 2000 Water Framework Directive was adopted, France transposed it with Act No. 2004-338 of 21 April 2004. This directive reflects the will of the member states' to harmonise their water legal systems.

There are several organisations responsible for water management. Placed under the authority of the Minister of Ecological and Inclusive Transition, the Water Department's mission is to develop and monitor the application of the rules relating to the water regime. At its side is the National Water Committee, an advisory body, whose secretariat is taken up by the Water Department. It gives its opinion on the projects of development and distribution of waters with a national character, on large regional arrangements or on the quality of the public services of water distribution. Finally, the French Agency for Biodiversity, which is an administrative public state body, ensures the balanced and sustainable management of water and promotes the coherence of other policies that would have an impact on biodiversity and water.

The legislator organises water management through two urban planning documents: the Main Plan for Water Development and Management (SDAGE) and the Water Development and Management Plan (SAGE). The 2006 law strengthens the legal scope of the SAGE by giving it the status of a document with regulatory value. Several specialised institutions in the field of water management ensure its management: the water basins whose prefects are coordinators, the basin committees that develop the SDAGEs, as well as the water agencies that implement the principle of balanced and sustainable management of water resources. Finally, a local water commission is created by the prefect to review and monitor the application of the SAGE.

iii Chemicals

The law relating to chemicals appeared in the 19th century, first through the decree of 15 October 1810 on unhealthy, inconvenient or dangerous factories and workshops, then through the law of 19 December 1917, and finally through the legislation on classified installations by law No. 76-633 of 19 July 1976. A national plan for the prevention of risks to health related to the environment is drawn up every five years. The first 'National Health-Environment Plan' was developed in June 2004 by the government to guide the regulation from 2004 to 2008. A second plan (PNSE 2) was adopted in July 2009. Adopted in November 2014, the PNSE 3 for the period 2015–2019 provides several measures, including risk mapping.

The European Union has set up the REACH system and has created a European Chemicals Agency. The REACH regulation requires companies that manufacture and import chemical substances to evaluate and assess the risks resulting from their use and to take the necessary measures to manage any identified risks. This regulation replaces more than 40 previous directives and regulations and creates a single system applicable to all chemicals.

In France, the administrative bodies responsible for chemicals are divided between several ministries. The prevention and precaution committee has a dual mission: on the one hand, to monitor and alert on all environmental issues likely to have an impact on human health and, on the other hand, to conduct expertise in the assessments of health risks related to the environment. Victims of chemicals have several avenues of action available when they seek redess for their injury. The protection of health is guaranteed by the nation under Article 11 of the preamble to the 1946 Constitution, which is incorporated into the 1958 French Constitution. The regime for the prevention and reparation of damage caused to the environment by hazardous professional activities is established by Act No. 2008-757 of 1 August 2008, codified in Articles L 160-1 to L. 165-2 of the Environmental Code. Currently, chemicals are subject to legal rules that may engage the responsibility of the various stakeholders throughout this process.

iv Solid and hazardous waste

Waste is defined in Article L 541-1-1 of the Environmental Code. Hazardous waste is characterised by one or more of the hazard properties specified in Annex III of the waste Directive 2008/98/EC. An asterisk in the list of waste mentioned in Article R 541-7 of the Environmental Code allows to report it. Every waste holder is required to characterise his or her waste, and in particular to determine if it is hazardous waste in order to direct them to the right treatment, or, failing that, to any producer.

The mayor or the chairman of the group of local authorities responsible for collecting waste shall, by reasoned decree, after consulting the decision-making body of the municipality or the group of local authorities responsible for the collection of household waste, establish the terms of the collection various categories of waste.

The prevention of waste is one of the pillars of the circular economy, according to Article L 541-1 of the Environmental Code. Waste management must not endanger human health or harm the environment. The extended responsibility of waste producers is reaffirmed in the name of the polluter pays principle, regardless of the legal nature of the producer. French legislation incorporates European guidelines in this area: the 2015 Energy Transition Act includes the European objective of reducing by 50 per cent the stored waste by 2025.

v Contaminated land

It is with the aim of limiting urban sprawl that a legislative framework dedicated to 'Polluted Sites and Soils' was brought into the Environmental Code. Article 173 of the 2014 Law on access to housing and renovated urban planning has provided a number of clarifications that are now codified in the Environmental Code. In particular, this is with regard to land use changes in land that have hosted a facility that has been decommissioned and rehabilitated, or construction or subdivision projects located in a land information area. The legislator has confirmed the idea of ex officio execution of works in the case of pollution of the land or risks of soil pollution presenting threat for the health, the safety of the public and the environment regarding the use taken into account. The person responsible is either, in order of priority: the past operator of the installation causing the soil pollution, or the person designated under Articles L 512-21 and L 556-1 of the Environmental Code. For soils polluted by another origin, it is the producer of waste who has contributed to the origin of the soil pollution or the waste holder to whom the fault is contributed. In the absence of a responsible party, one turns towards the owner of the land base of the soil polluted by an activity or waste, if it is shown that he or she has been negligent or that he or she is not a stranger to this pollution. Soil pollution is also assessed in terms of the damage it is likely to cause to the environment with a risk of serious injury to human health due to soil contamination resulting from direct or indirect introduction of substances, mixtures, organisms or microorganisms.

The state is not meant to replace the designated officials. However, their failure may lead it to do so under the conditions laid down in Articles L 131-3 and L 541-3 of the Environmental Code.