“Environmental protection body demonstrated its independence”

News-Environment: Why is the role of the Environment Agency (EA) important?

Philippe Ledenvic: It has two main functions. The first is to provide advice that clients can use to improve their projects. Ae’s known difficulty in his origin is that the project owners did not pay attention to what he said, because it was unknown. Looking back ten years, I know that is no longer the case. Ae’s feedback allows them to spot flaws in their documentation and improve their projects. Some project owners lack skills or, on the contrary, are far from the design office. An opinion can be particularly useful in understanding the weaknesses and risks of their file, both legal and substantive. Field visits by rapporteurs are particularly popular because these exchanges allow them to understand or discover things they may have missed when compiling their files.

AE: What is its second function?

PhD: This is public information. Positive statements come from all sides, primarily from investigators. When they learn about the file, they read the non-technical summary, Ae’s opinion, and the memorandum in response. With these three short pieces, they can very quickly deal with very complex files ranging from several hundred to several thousand pages. The statements of public and environmental protection associations going in the same direction are also legion. These ideas have an almost unanimous educational value for the public and therefore for the realization of ecological democracy.

AE: After all, isn’t Ae perceived by some as “preventing going around in circles”?

PhD: I don’t think that’s the right term. On the one hand, there are decision-making bodies and political authorities for which Ae’s opinion is only an additional procedural act that extends the authorization of projects. They would like projects to be approved sooner, if not better. on the other hand, from time to time, there may be certain projects where Ae’s opinion is a more or less important stone in the shoe for the project owners. A gem that is often expected elsewhere. The question that then arises before the procuring organization and the project authorizing body is how to manage all the risks that are put on the table publicly and the project authorizing body makes a decision.

AE: Have Ae’s views led to the projects being questioned?

PhD: Yes, even if I don’t have proof in most cases. Ae doesn’t have the option and decides anyway not to follow her thoughts, at least for the time being. But we do know that a number of projects were either delayed, reviewed, or questioned following his advice. In reality, a number of other reasons cause projects to be questioned, and Ae’s feedback is only one element that reveals the bottleneck. However, there is one situation we can answer with certainty: it is the East-West link south of Avignon. While there were many environmental problems that were not considered at the turn of the century, twenty years after his second section was authorized, but not implemented, the impact study was more or less the same (Natura 2000, Durance floods). That’s why we issued a particularly serious opinion that highlighted several fundamental issues. Despite all expectations, the State launched a public consultation with almost no changes and a brief response that did not respond to the recommendations. This is the only time Ae has decided to contribute to a public consultation to warn that there are still no answers to these important questions. As a result, the project presented in 2020 was suspended and is currently being re-examined.

AE: Do Ae’s ideas help improve projects in general?

PhD: I believe him. We can confirm this with the documents that we have examined two or three times in a row: first at the stage of announcing the utility service, then at later stages such as issuing permits related to environmental protection. We see that contracting agencies have tried to mitigate certain impacts and improve things in one way or another. Some road projects come back with, for example, less land consumption, less destruction of wetlands, better identification of impacts on the natural environment, and more stringent compensation measures at the environmental permitting stage.

AE: In your last annual report, you point out the worrisome discrepancies between the goals set by the plans and programs and the acts intended to translate them. What about?

PhD: Real improvements, in fact, belong to project documents, while many plans and programs remain political declarations that rarely translate into action in line with the objectives set. The gap between increasingly strong ambitions and the lack of means to achieve them is of increasing concern. This reflects a certain administrative and political decision-making culture in France. Honestly, our opinions don’t count here. But as everywhere, there are exceptions in plans and programs that are not bad and have a fairly good environmental assessment. We then have the impression that our recommendations will allow us to identify areas for improvement in terms of method or content.

AE: Current arrangements for environmental assessment seem too complicated. Why such complexity?

PhD: All these systems have a European essence and are not spontaneously expressed by the French law and approach, which is very much bound to classifications with limits, by permission, instead of a global approach by design. Before 2017, French texts were therefore still not in line with European law. After a series of controversies, especially with regard to the environmental assessment, an overhaul was carried out in an order issued in August 2016. French law was then further aligned with European law, and everything should theoretically normalize. However, the main problems arising from this difference in approach were not solved. Practical difficulties therefore gradually arose, and French law was adapted to open the door to a large number of exceptions. Since 2017, all the provisions adopted under the pretext of simplification have ultimately led to further complexity of the law: it is the case of the separation of the environmental protection authority and the responsible authority in each case where France is the subject. Reasoned opinion of the European Commission. In addition to complexity, this introduces new legal risks for both decision-makers and clients.

AE: What are the future problems related to compliance with European legislation?

PhD: In projects, France is struggling to fully embrace the spirit of the directive, which ensures that one of the project’s components can evolve with each new permit. At the end of the decision-making process, all impacts must be the subject of prevention, mitigation or compensation measures. As for plans and programs, the list of those subject to environmental assessment does not make any sense: although program plans are not of much interest from the point of view of assessment, they appear on the list, concessions on highways, etc. hydraulic concessions.

AE: Ways to change Ae were proposed, such as a merger with the National Commission for Public Debate (CNDP). What about?

PhD: I don’t know any new ideas to change the system as a whole. As during the mission of Deputy Muschiotti there was some bubbling and possible development proposals, now the opening of the new project no longer seems to be on the agenda. This mission emphasized the importance of having structures such as environmental bodies that can mobilize independent technical expertise in an unequaled manner. CNDP must ensure its neutrality and objectivity towards the public without taking a position, and Ae must express an analytical and critical view of the elements presented to the public. The Muschotti mission did not retain the idea of ​​merging Ae and CNDP, as there was no obvious added value.

AE: Is Ae’s independence in jeopardy?

PhD: Ae has demonstrated its independence, and for ten years, according to the European and French frameworks, I feel that I am a serious provider of it. It has always been able to deliver what it wants, when it wants, and what it wants through its announcements and annual reports. I think that this independence is structural because it has to do with its collegiality: if its 17 members come together to say what they have to say, the president doesn’t have much room for maneuver anyway. There was a small exception in the past. Ae weakened slightly at the end of 2021 due to a combination of three factors: a real overload of activity related to the simultaneous arrival of many plans and programs (Sdage, PGRI, plan contracts, etc.); retirement of hard-to-replace Ae members; reducing the deadline for submitting opinions on projects from three months to two months. It was there that we felt that difficulties with means might raise the issue of preserving our independence. However, the resource situation returned to normal at the beginning of 2022.

AE: Are there still areas of concern?

PhD: A medium-term issue to be consolidated is the proper functioning and independence of the group established by the Ae and regional environmental authority missions (MRAe). The latter are potentially more fragile in terms of available tools and their degree of collegiality. Their activity is not homogeneous. In many MRAs, opinions are prepared by the president alone or by the president and another member. This puts them under more pressure – this is a theoretical risk, but a slight one – but above all not mastering all the important environmental issues in certain files: in the collegial review, everyone brings an experience. The strength and independence of ideas is at this price.

Article published on November 25, 2022