Derogation licence from protected species obligations and opinion of the Conseil d'Etat: has all the uncertainty been resolved?
The French Conseil d'Etat issued its opinion on 9 December (case No.463563) on the questions submitted by the Administrative Court of Appeal of Douai regarding derogations from the prohibition on destroying protected species (ruling No.20DA01392 of 27 April 2022). While this opinion was highly awaited by renewable energy sector players, the principles it lays down are applicable to any infrastructure or real estate project whose completion is likely to require the granting of such a derogation.
The Conseil d'Etat had to answer the following questions in particular:
The Conseil d'Etat had to answer the following questions in particular:
- is there a threshold, particularly in terms of the number of affected specimens, below which the project owner is not required to apply for this derogation?
- must the administrative authorities take into account the measures of avoidance, reduction and compensation ("mesures ERC") of the impacts of the project planned by the project owner to assess whether such a request is necessary?
After recalling that the European directives provide for a strict protection regime for the animal species concerned and their habitats, and that a derogation can only be granted if three distinct and cumulative conditions are met[1], the Conseil d'Etat provides two-step guidance enabling project owners to determine the cases in which they must file an application for a protected species derogation licence:
- the first step is quite objective and involves assessing whether specimens belonging to a protected species are present in the project area. At this stage, it is not possible to take into account the number of specimens, or the conservation status of the protected species;
- if such specimens are present, an application should only be filed if the risk that the project entails for the protected species is "sufficiently identified", after taking into account the avoidance and reduction measures planned by the project owner. This second step, which is necessarily more subjective than the previous one, will be decisive in assessing whether or not it is necessary to request a derogation. It is only at the time of deciding whether or not to grant the derogation (i.e., once the application has been filed) that the compensation measures can be taken into account by the competent authority.
An application for a derogation must therefore be filed if (i) at least one specimen is present in the project area and (ii) there is a "sufficiently identified" risk for the protected species. In other words, contrary to what environmental protection groups regularly argue in support of their legal actions and to certain decisions of the administrative courts: the simple presence of a specimen in the project area is not sufficient to require the filing of a request for derogation licence.
However, the Conseil d'Etat's opinion does not provide a complete answer to the questions raised by project owners.
On one hand, the notion of "sufficiently identified" risk is not precisely defined (and may not be within the scope of the role of the Conseil d'Etat in this case) and may be subject to potential divergent interpretations by the administration and administrative courts.
On the other hand, the French Cour de Cassation recently ruled (Cour de cassation 3rd chamber 30 november 2022, n°21-16.404) , that the offence of harming the conservation of a protected species (article L. 415-3 of the Environmental Code) is established as soon as a single specimen has been destroyed if a derogation licence has not been requested by the project owner.
We can therefore wonder about the fate of project owners who have not requested derogations licences for protected species in accordance with the opinion of the Conseil d'Etat, but whose projects actually destroy specimens of protected species. Could the civil and penal liability of the project owners be triggered even though the project complies with the administrative case law?
[1] These are (i) the absence of a satisfactory alternative solution, (ii) the condition of not harming the maintenance, in a favorable conservation status, of the populations of the species concerned in their natural range and (iii) the existence of an imperative reason of major public interest.