All questions

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.

The legislative and regulatory framework for air protection was introduced in France by the Law on Air and Rational Use of Energy of 30 December 1996, which makes Regional Air Quality Plans mandatory, replaced since then by the Regional Climate, Air and Energy Schemes resulting from Law No. 2010-788 of 12 July 2010 on National Environmental Commitment), the Atmospheric Protection Plans and the 'air' section of the Urban Travel Plans.

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, and is listed in Article L. 220-1 of the Environmental Code. This principle has been constitutionalised and enshrined in the Environmental Charter. Indeed, Article 1 of the Environmental Charter also provides that 'everyone has the right to live in a balanced environment that respects health'. If it can be directly invoked before the judge in the context of a dispute, Article 1, like all the other articles of the Charter, is addressed first and foremost to the public authorities and the legislator, who must ensure that this right is protected. It should be read in conjunction with Article 1 of the Air Act, which recognises the right of everyone to breathe clean air. Air pollution seriously affects health; in France, the number of deaths attributed to air pollution is at least 45,000 per year, according to the European Environment Agency.

The measures for the Plan for the Protection of the Atmosphere must be elaborated by the state representative (prefect) in municipalities with 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. This approach is linked to the decision handed down in July 2017 by the Counsel of the State, which held the state responsible for persistent violations of the concentration limit values for fine particles (PM) and nitrogen dioxide (NO2) in several areas of the national territory. The High Administrative Court requested the French state to implement an effective air pollution control strategy by 31 March 2018. On 13 April, in a press release, Nicolas Hulot, former Minister of Ecological and Inclusive Transition, published the roadmaps on air pollution, drawn up by the regional prefects of the areas concerned by the exceeding of air pollution thresholds. These roadmaps set out actions to improve air quality in the 14 areas particularly affected by air pollution. For example, the public authorities of the Ile-de-France region (Paris) have committed themselves as climate, air and energy leaders for the period 2018 to 2022.

Nicolas Hulot also welcomed the development of measures such as the vehicle conversion bonus (which allows French people who want to buy a new or recently used car emitting less than 130 gCO2/km to receive aid of up to €1,000 by scrapping an old polluting vehicle; this bonus is doubled for non-taxable households) or the successful deployment of the Crit'Air system, a secure sticker to be affixed to the vehicle that indicates its environmental class according to its emissions of atmospheric pollutants, making it possible to favour the least polluting vehicles.

The Commission brought an action before the CJEU against France for 'non-compliance with the limit values for NO2 and for failure to take appropriate measures to shorten the periods of exceedance as much as possible'. France would be expected to now review its solutions to fight against 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 (res communis). 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. The first legislation against pollution of surface and groundwater was Law No. 64-1245 of 16 December 1964 on the regime and distribution of water and the fight against pollution, which established the legal framework for the regulation of water resources by dividing France into six river basins. The second was Law No. 92-3 of 3 January 1992 on Water, which harmonised the legal regime for water management. Finally, Act No. 2006-1772 of 30 December 2006 on Water and Aquatic Environments recognised the priority use of water for human consumption and established a right of access for all 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, and 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 other people than solely the locals.

To this must be added EU law, which constitutes an essential source of water law, as well as international conventions. France transposed Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000, establishing a framework for Community action in the field of water policy by 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. The National Water Committee, an advisory body whose secretariat is taken up by the Water Department, 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. In addition to the regional water agencies (one per river basin), the French Biodiversity Agency, a public administrative body, ensures balanced and sustainable water management and promotes the coherence of other policies that would have an impact on biodiversity and water.

The legislator organises water management through two types of 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 general law relating to chemicals and dangerous industrial activities appeared in the nineteenth century, first by the decree of 15 October 1810 on insalubrious, inconvenient or dangerous factories and workshops, then by the amended law of 19 December 1917 on dangerous, insalubrious or inconvenient establishments, and finally by Law No. 76-633 of 19 July 1976 on Installations Classified for the Protection of the Environment, now codified in Book V, Title I of the Environmental Code. 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' (PNSE 1) was developed in June 2004 by the government to guide 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 to 2019 provides several measures, including risk mapping.

The European Union has set up the Registration, Evaluation, Authorisation and Restriction of Chemicals (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.

The administrative bodies responsible for chemicals are divided between several ministries (Health and Environment). The Prevention and Precaution Committee has a dual mission: to monitor and alert on all environmental issues likely to have an impact on human health; and to conduct expertise in the assessments of health risks related to the environment. Victims of chemicals have several legal remedies available to them when seeking redress for the damage caused. The protection of health is guaranteed under Article 11 of the preamble to the 1946 Constitution, which is incorporated into the 1958 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 European waste Directive 2008/98/EC. An asterisk in the list of waste mentioned in Article R. 541-7 of the Environmental Code allows reporting 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 him or her to the right treatment, or, failing that, to any producer.

After consulting the decision-making body of the municipality or the group of local authorities responsible for the collection of household waste, the mayor or the chairs of the group of local authorities responsible for collecting waste must establish the terms of the collection for 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.

The prevention of waste is one of the pillars of the circular economy, according to Article L. 541-1 of the Environmental Code.

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 Law No. 2014-366 on Access to Housing and Renovated Urban Planning has provided a number of clarifications that are now codified in the Environmental Code, particularly with regard to land-use changes to facilities that have been decommissioned and rehabilitated, or construction or subdivision projects located in a land information area. In essence, the law allows the transfer of industrial responsibilities for soil pollution to the developer and not just to the industrialist.

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, by order of priority: the last 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 attributed. As indicated, 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 is aware of 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 owing to soil contamination resulting from direct or indirect introduction of substances, mixtures, organisms or micro-organisms.

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.