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Guyane Nature Environnement and France Nature Environnement v. France - decision

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The company ‘EDF Production Électrique Insulaire’ intended to replace an old thermal power plant in French Guiana, France’s overseas region, which, due to its obsolescence and future compliance with regulatory standards, had to be shut down by December 31, 2023. A decree dated March 30, 2017, set forth the replacement of the thermal power plant by a new thermal power plant; the operation of this power by EDF was authorised by an order of the territorial authority on June 13th, 2017. By two orders dated October 22, 2020, the Prefect of French Guiana issued an environmental authorization for a new oil-fired thermal power plant construction project to proceed and a building licence. 

On July 7, 2021, two environmental organizations (Guyane Nature Environnement and France Nature Environnement) requested the suspension of the environmental authorization to the interim relief judge (juge des référés) of the administrative court of French Guyana. On July 27, 2021 and September 7, 2021, the judge of the administrative court granted the request and suspended the authorization considering that there were serious doubts about the legality of the authorization. The suspension was based on: (i) the objectives of reducing greenhouse gas (GHG) emissions defined by law (-40% between 1990 and 2030), and (ii) the provisions of the urban planning code relating to the limited extension of urban development in areas close to the shoreline.

On August 11th, 2021, the Minister of Ecological Transition and EDF Production Électrique Insulaire asked the Council of State to overturn the suspension of work of the future power plant. On February 10th, 2022, the Council of State granted these requests and overturned the suspension of the Larivot power plant environmental authorization decided by the interim relief judge of the administrative court of French Guyana. The Council of State considered that there was no legal requirement to take into account the national energy policy objective of reducing GHG emissions by 40% between 1990 and 2030, as set out in article L. 100-4 of the Energy Code, for authorizations that do not relate to the operating of a power plant producing electricity using fossil fuels. 

The decision is based on the distinction between the conditions of issuance of an environmental authorization and the conditions of issuance of an authorization to operate the plant. The environmental organizations have contested the environmental authorization on the ground of breach of article L. 100-4 of the Energy Code. However, environmental authorizations must comply with the objectives of reducing GHG emissions as set forth in article L. 100-4 only in specific cases, and this was not one of them since it did not entail the authorization to operate the plant (which had been previously granted). 

With regards to article L.121-40 of the French Urbanization Code and the limited extension of urban development near coastlines, the Council of State held that the provision only applies to decisions authorizing urban developments. Therefore, the provision is not applicable to environmental authorizations, the purpose of which is not to authorize the construction of one or more facilities, but rather to authorize the future operation of such facility. The Council of State applied the principle of independence of legislation.

On April 28, the administrative court of Cayenne has annulled the environmental authorization, stating that, even though the project of construction of a power station has to be considered as of major public interest, it is not proved that the two zones of the site known as the «future park» at Rémire-Montjoly do not constitute satisfactory alternatives to the Larivot site for the location of the EDF-PEI power plant, making it possible to limit the damage caused to protected species. Therefore, it ensues that considering that there was no satisfactory solution other than the one chosen by the petitioner for the siting of the power plant at the Larivot site, the prefect incorrectly applied the provisions of 4° of Art. L. 411-2 of the environmental code.

EDF and the Ministry appealed this decision and the Administrative Court of Appeal of Bordeaux, on June 2022 suspended the decision of the annulment of the environmental authorization granted to EDF.

Moreover, on July 18, 2022 the administrative court of Guyana issued the final decisions, which focus on the building license, and annulled such license, affirming that it does not respect the provisions of the urban planning code. More precisely, the administrative court affirmed that the Larivot site constitutes a characteristic site of the natural heritage of Guyana's coastline, sheltering an environment necessary for maintaining biological balance. As a result, the court considered that, given that the site chosen to host the power plant constitutes a characteristic site of the natural heritage of Guyana's coastline, the authorization failed to comply with the provisions of the town planning code. Moreover, the court affirmed that the environmental impact study carried out by EDF the French electricity company was vitiated by substantial shortcomings in the comparison of the environmental impacts of the various alternative sites envisaged by the project owner for the location of the power plant.

As a result of these two irregularities, the administrative court annulled the building permit issued to EDF-PEI for the construction of a power plant on the Larivot site. The administrative court rejected the other requests of the claimants, asking for the cancellation of the prefectural orders concerning the construction of a fuel transport pipeline over 14 kilometers between the port of Dégrad-des-Cannes and the power station of Larivot.

EDF-Pei and the Ministry of Ecological Transition have appealed also this decision, claiming for a suspension of the enforcement of the judgment. 

On October 7, 2022 the administrative court of appeal of Bordeaux suspended the decision of the annulment of the building permit granted in 2020 to EDF for this power station. In its preliminary judgement, it considers that the French group has submitted to the public inquiry an environmental impact study which assesses the different possible alternatives and that the site of the power plant is not part of remarkable natural areas. 


Guyane Nature Environnement and France Nature Environnement v. France

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Guyane Nature Environnement and France Nature Environnement v. France - decision

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Finance