Administrative procedures, particularly in environmental matters, during the covid-19 health emergency period

The Emergency Act to deal with the covid-19 epidemic of 23 March 2020 empowers the Government to take any measure within the scope of the law to deal with the consequences, particularly of an administrative nature, of the spread of covid-19 and measures to limit that spread.

In accordance with Article 11 of this emergency law No. 2020-290 of 23 March 2020 to deal with the covid-19 epidemic, Order No. 2020-306 of 25 March 2020 on the extension of time limits during the period of health emergency and the adaptation of procedures during the same period (“Expired Time Limits” Order) has just been issued.

The periods concerned by the provisions of the “Expired Periods” Ordinance are those that expire between 12 March 2020 and the expiry of a period of one month from the date of cessation of the declared state of health emergency, and if necessary extended.

Article 2 sets out the details of this mechanism for extending the term and the deadline, making it possible not to consider an act carried out within the additional period laid down as late, the deadlines being extended from the end of that period, for the length of time that was legally stipulated, but within the limit of two months.

On the other hand, it should be noted that this measure does not cover the following:

– time limits which expire before 12 March 2020, their term not being extended ;

– time limits whose expiry date is later than the month following the date of cessation of the state of public health emergency, such time limits being neither suspended nor extended.

As regards extended measures in particular, Article 3 sets out a list of judicial and administrative measures whose effect is automatically extended:

“The following administrative or jurisdictional measures, the term of which expires during the period defined in Article 1(I), shall be automatically extended until the expiry of a period of two months following the end of that period:

1° Precautionary, investigation, investigation, conciliation or mediation measures;
2° Prohibition or suspension measures that have not been pronounced as a sanction;
3° Authorisations, permits and approvals;(…) However, the judge or competent authority may modify or terminate these measures when they have been pronounced before 12 March 2020″.

Moreover, Article 6 specifies the scope of application of this measure, with an extensive concept of the concept of administrative authority, taking up that of the Code on relations between the public and the administration (administrations of the State, regional and local authorities, public administrative establishments, public law and private law bodies and persons entrusted with a public administrative service mission, including social security bodies).

The suspension applies to all procedures relating to administrative authorizations, in particular those under the Environmental Code. Thus, with regard to environmental law in particular, the third point of article 3 refers to authorizations and other permits, such as, inter alia, prior declarations, as well as operating authorizations or other requests for exemptions or notices, under the ICPE regulations or the Water Act, and, more generally, those falling within the scope of the environmental authorization, which expire during this period; these would therefore be extended until August 24, in the case of authorizations already issued and which were due to expire during this health emergency period.

In practice, this extension constitutes an extension of the original deadline of 24 August.

Similarly, the investigation periods that started before 12 March 2020 and had not expired before that date are suspended until 24 June 2020.

Article 8 of the Ordinance “Time Limits Expired” further specifies:

“Where they have not expired before 12 March 2020, the time limits imposed by the administration, in accordance with the law and regulations, on any person to carry out inspections and work or to comply with requirements of any kind shall, on that date, be suspended until the end of the period mentioned in Article 1(I), except where they result from a court decision, and the starting point of time limits of the same kind which should have begun to run during the period mentioned in Article 1(I) shall be postponed until the end of that period.”

This provision may concern, for example, formal notices to comply with the BEPI, for which the deadlines are thus suspended until the end of the period or their starting point is postponed until the end of the period, if they should have started to run during the period.

Moreover, article 9 of the Ordinance on “Time Limits” provides that: “Notwithstanding the provisions of articles 7 and 8, a decree shall determine the categories of acts, procedures and obligations for which, for reasons of protection of the fundamental interests of the Nation, security, protection of health, public health, preservation of the environment and protection of children and young people, the course of time limits shall resume. […] ».

However, Decree No. 2020-383 of 1 April 2020 derogating from the principle of suspension of time limits during the period of health emergency related to the covid-19 epidemic (published in the Official Journal of 2 April) precisely proceeded, for reasons relating to security, protection of public health and safety and preservation of the environment, to the “thawing” of the periods for the fulfilment of prescriptions which, expiring during the period laid down in Article I of Article 1 of Ordinance No. 2020-306 of 25 March 2020 (state of health emergency plus one month), or whose starting point was due to begin to run during that period, was suspended by the effect of Article 8 of that Ordinance.

Thus, in administrative matters, many delays in these procedures, particularly of an environmental nature, will have to be maintained by way of derogation and are thus “unfrozen” on the grounds of safety, protection of public health and hygiene and preservation of the environment, impacting in particular certain decisions, which fall under the Environment Code, particularly those taken in the area of ICPE, as well as IOTA (hydraulic works, dikes, dams), mining facilities, etc. Consequently, the controls prescribed by decrees or other administrative sanction measures will have to continue despite the current health crisis.

Finally, with regard to public inquiries, Article 12 of the “Time Limits” Ordinance is specific to them, favoring dematerialization for these inquiries:

“This Article shall apply to any public inquiry already in progress on 12 March 2020 or to be held during the period defined in Article 1, paragraph I, of this Order. When the delay resulting from the interruption of the public inquiry or the impossibility of carrying it out due to a state of health emergency is likely to have consequences that are difficult to remedy in the implementation of projects of national interest and urgency, the authority competent to organise the public inquiry may adapt its procedures:
1° By providing that the public inquiry in progress shall be continued using only dematerialized electronic means. The total duration of the inquiry may be adapted to take into account, if necessary, the interruption due to the state of health emergency. The observations collected previously are duly taken into account by the investigating commissioner;
2° By organizing a public inquiry from the outset conducted solely by dematerialized electronic means.
When the duration of the inquiry exceeds the period defined in I of Article 1 of this order, the competent authority has the option of returning, once this period has elapsed and for the duration of the inquiry still to run, to the organizational arrangements under ordinary law set out in the provisions governing the category of inquiry to which it belongs.
In all cases, the public shall be informed by any means compatible with the state of public health emergency of the decision taken pursuant to this article.”

This therefore applies to public inquiries already in progress on 12 March 2020 or to be organized up to and including 24 June 2020.

Moreover, the Ministry of Territorial Cohesion and Relations with Local and Regional Authorities has recently been able to specify on its website that:

« L’ordonnance comporte des mesures suspendant les délais applicables aux demandes présentées aux autorités administratives. Sont concernées les demandes donnant lieu à une décision d’une autorité administrative, et notamment des décisions implicites d’acceptation ou de rejet ainsi que les délais fixés pour les acteurs pris dans le cadre de la procédure d’instruction de ces demandes. A titre d’illustration, les demandes formulées en matière de droit des sols (déclaration de travaux, permis de construire, permis d’aménager, etc…) sont visées, ainsi que les délais applicables aux déclarations présentées aux autorités administratives, par exemple une déclaration d’intention d’aliéner (DIA).

Il en est de même pour les délais de consultation du public ou de toute instance ou autorité, préalables à la prise d’une décision par une autorité administrative. Par exemple, ces dispositions permettront de suspendre des consultations ou des enquêtes publiques en cours, ou de permettre la consultation d’instances qui n’auront pu se réunir. Enfin, les autorisations, permis et agréments délivrés par une autorité administrative seront par ailleurs prorogés. »

“The order includes measures suspending the time limits applicable to applications to the administrative authorities. This concerns applications giving rise to a decision by an administrative authority, and in particular implicit decisions of acceptance or rejection, as well as the time limits set for the actors involved in the procedure for examining such applications. By way of illustration, applications formulated in the field of soil law (declaration of works, building permits, development permits, etc.) are covered, as well as the deadlines applicable to declarations submitted to administrative authorities, for example a declaration of intent to dispose (DIA), and the deadlines for consultation of the public or any body or authority, prior to a decision being taken by an administrative authority. For example, these provisions will make it possible to suspend ongoing public consultations or enquiries, or to allow consultation with bodies that have been unable to meet. Finally, authorizations, permits and approvals issued by an administrative authority will also be extended.”