In this pre-election re-entry, the environmental issue will undoubtedly be at the heart of the proposals of the candidates for the supreme office. A recent decision of the Council of State therefore deserves to be noted given its highly symbolic value.
In this case, seized by the association “Les Amis de la Terre”, the Council of State had ordered, in July 2017 (CE, July 12, 2017, n ° 394254, published in Lebon), the government to implement plans to reduce the concentrations of nitrogen dioxide (NO2) and fine particles (PM10) in 13 areas in France as quickly as possible, in order to comply with the requirements of the European directive on the quality of air (Directive 2008/50 / EC of the European Parliament and of the Council of May 21, 2008) which sets limit values not to be exceeded for these concentrations. However, noting, on July 10, 2020, that the limit values were still exceeded in 8 zones and that the State had not taken all the measures to ensure the execution of the decision of July 12, 2017, the Council of The State had ordered him by a judgment to take the necessary measures within six months, under penalty, at the expiration of this period, of being imposed a fine of 10 million euros per semester of delay (CE, July 10, 2020, n ° 428409, published in Lebon).
This deadline having passed, the aforementioned association asked the Council of State to note that its decision had not been fully implemented and to liquidate the penalty payment for the first semester.
The Council of State begins by noting that, since its decision of July 2020, the data transmitted show that the thresholds are still exceeded. Thus, in 2019, 5 zones again recorded a nitrogen dioxide level above the limit thresholds (Paris, Lyon, Marseille-Aix, Toulouse and Grenoble) and one concerning fine particles (Paris). Provisional data provided by the parties for 2020 indicate that the overruns persist for Paris and Lyon and that the rates are only slightly below the thresholds for the other three zones, even though the measures taken in the context of the health crisis have greatly reduced road traffic. However, the measures taken since July 2020 to reduce air pollution such as the establishment of new low-emission zones, the encouragement of the conversion of the national vehicle fleet to less polluting vehicles, or the progressive ban gas or fuel oil boilers should certainly have positive effects on air quality, but the Council of State considers that there is still some doubt as to their effectiveness in allowing a return below the limit values as soon as possible. short possible.
In addition, according to the Council of State, “it results from the instruction that no new plan for the protection of the atmosphere has been adopted or revised since the decision of July 10, 2020 and that the revision processes already in progress. prices have not experienced a significant acceleration even though, although these plans do not necessarily constitute the only instrument capable of allowing the execution of the decisions of July 12, 2017 and July 10, 2020, they remain at this stage an adapted tool. in order, in each of the zones concerned, to summarize the measures taken or to be taken as well as the expected timetable to return below the limit values as quickly as possible ”.
Therefore, the high administrative court considers that “if all the measures put forward by the Minister should have the effect of continuing to improve the situation observed to date, the uncertainties surrounding the adoption or the conditions for implementation. implementation of some of them as well as the absence of a reliable assessment of their effects in the areas concerned do not allow, in the state of the investigation, to consider that they will be likely to put an end to the overruns still observed or to consolidate the situation of non-overrun in the ZAGs of Lyon, Paris, Aix-Marseille, Grenoble and Toulouse Midi-Pyrénées, with regard to nitrogen dioxide concentration rates, and in the ZAG of Paris, s ‘Acting levels of concentration of fine particles PM10, within a period which can be regarded as the shortest possible. It follows from the foregoing that the State cannot be regarded as having taken sufficient measures to ensure the full execution of the decisions of the Council of State of July 12, 2017 and July 10, 2020 in these areas ”.
As a result, the judges of the Palais-Royal have therefore liquidated the fine of 10 million euros pronounced in July 2020 in its decision. The latter has indeed imposed a fine against the State if it does not justify having, within six months of the notification of this decision, fully executed the decision of July 12, 2017 and set the rate of this penalty. to 10 million euros per semester of delay.
This amount is only valid for the period from January 11 to July 11, 2021.
For the distribution of the liquidation of this penalty, the Council of State considers that “given the amount of this penalty and in order to avoid undue enrichment, it is appropriate in this case not to allocate to the association Les Amis de la Terre France, the only applicant in the initial proceedings which led to the decision of July 12, 2017, that a fraction of the sum ”fixed at 100,000 euros. The remainder of this amount is allocated as follows:
– the sum of 3.3 million euros to ADEME,
– the sum of 2.5 million euros to CEREMA,
– the sum of 2 million euros to ANSES,
– the sum of 1 million euros to INERIS,
– the sum of 350,000 euros to Air Parif and Atmo Auvergne Rhône-Alpes each,
– and the sum of 200,000 euros to Atmo Occitanie and Atmo Sud each.
In the event of a persistent failure of the State in the coming months, other on-call liquidation decisions could be made.
This decision of the Council of State, commented on here, is part of a recent and salutary trend in administrative justice. The many climate treaties signed by France in recent decades – United Nations Framework Convention on Climate Change (1992), Kyoto Protocol (1997), Aarhus Convention of 1998, Paris Agreement on global warming ( 2015) – and their transcription into French law into precise objectives, resulted in an increase in the constraints directly resulting from the law imposed on the State in terms of environmental protection and in particular the fight against climate change. The administrative justice applied these obligations laid down by law, ruling that the State was required to implement them so that France could meet its commitments. If the State does not or insufficiently implement these obligations, it is up to the administrative judge (administrative courts, administrative courts of appeal, Council of State), when it is seized by citizens, associations, communities, that it is up to it to sanction it by ordering it, if necessary, to take additional actions, in accordance with its competence.
Frédéric ROSE-DULCINA
LEX SQUARED AVOCATS
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