Deregulation in France: criticism of a decree allowing prefects to circumvent regulations on culture and the environment

There is discontent in France over a decree, 2020-412, which was issued last April but continues to cause discussion, especially at this time of resumption of activities following the halt imposed by containment measures against the Covid-19 coronavirus infection.

The very simple decree consists of 6 articles and gives prefects the power to derogate from “arrêtés” (i.e., regulations and sectoral administrative acts) to make non-regulatory decisions on various matters: these include land management, environment, agriculture and forestry, construction, logistics and urban planning, protection and enhancement of cultural heritage, labor and economic activities, sports, socio-educational and associative activities. In Article 2, it states that derogations must meet four conditions: be justified by a reason of general interest and the existence of “local circumstances”; have the effect of easing administrative procedures, reducing procedural delays or facilitating access to public aid; be compatible with France’s European and international commitments; and not jeopardize the interests of the protection or safety of persons and property, nor be disproportionate to the objectives. Derogations will take the form of arrêtés.

Observers point out that this decree could very closely affect cultural heritage and environmental heritage. Julien Lacaze, president of the association Sites et Monuments - Société pour la Protection des Paysages et de l’Esthétique de la France notes similarities with a similar measure that granted exemptions regarding the construction of wind power plants, pointing out that “the protection of architectural heritage, still and always perceived as an obstacle to economic activities, is affected by these exemptions.” after all, the Ministry of Culture itself, in a note sent to regional prefects last May 5, was making it known that, for example, the exemption also covers the obligation to produce the documents required by the regulatory parts of the French Cultural Heritage Code in order to obtain permission to carry out work on a listed historic monument. According to Lacaze, however, there is also something more serious, namely that the decree also allows for derogations vis-à-vis cultural heritage preservation plans: this, Lacaze’s statement reads, would mean that a property that, according to these plans, should be preserved, “could be demolished at the request of a mayor and upon prefectural waiver without the preservation plan being revised or modified. To do so, it will be sufficient to invoke a reason of general interest, for example for reasons of public health or economic development.” For Lacaze, this is ultimately a “dangerous decree.”

Before that, the young journalist Gaspard d’Allens had described the new measure in Reporterre magazine as “a decree that weakens again the rights of the environment for the benefit of a future economic revival.” Indeed, the fear is not only for the historical and architectural heritage, but it is also for the environmental heritage. D’Allens recalled that this decree is a “copy-paste” of a similar measure adopted in 2017 for two regions (the Pays de la Loire and Burgundy-Franche-Comté), which was already a source of much controversy at the time (there were also several administrative appeals). Environmental associations complain that they were not listened to by the government, and brand the decree as a gift to the construction and agriculture lobbies. “The risk of drifts is multiplied,” believes Patrick Saint-Léger of the Syndicat national de l’environnement, because “these are measures that allow economic actors to get rid of certain procedures that they consider too burdensome.” He is echoed by Gabriel Ullmann, an expert in environmental law: “the margins of deregulation are potentially significant. Everything will depend on the prefects’ assessments. For now, they have remained quite cautious in the course of the experiment [ed. note: he is referring to the 2017 decree for the two regions, which was to be a local experiment and then extend the rules nationwide]. But experience shows that bad habits are not only maintained, but strengthened. With the generalization of the measure, the prefects will gain in boldness and go on to progressively accelerate the machine of destruction.”

In addition, there is the concern that the general interest motives established by the decree are economic but not environmental: there is therefore a risk that the construction of new facilities for economic reasons will threaten the environmental balance of the areas where they will be built. And this is because, D’Allens points out, “the culture of the prefects privileges economic development above all”: the danger is therefore that prefects may interpret this decree too broadly.

Finally, the last to speak on the subject were, yesterday, journalists Bénédicte Bonnet Saint-Georges and Didier Rykner with an article signed by four hands and published in La Tribune de l’Art. Saint-Georges and Rykner point out that the decree does not allow prefects to touch laws (the decree, in the French legislative system, is in fact subordinate to laws), let alone the Constitution, but it is a measure that nonetheless makes the normative parts of arrêtés optional, which include codes regulating cultural heritage, the environment and town planning. For the two, however, it is a hypocritical decree, because the phrase “general interest” would allow “a great deal of leeway, because if economic revitalization is presented as being of supreme general interest, then anything goes. But if regulations are not already serving the general interest, then what good are they?”

Saint-Georges and Rykner then point out that prefects, with this decree, could safely bypass the advice of subject matter experts, especially in cases where prefects are too inclined to submit to local powers. For example, “the prefect,” they write, “could ignore the recommendations of some commissions, such as the territorial commission of archaeological research in the framework of a preventive archaeology operation, or those of the regional commission of heritage and architecture when deciding to withdraw the architectural constraint on a contemporary building if the property is in degradation.” The two journalists also list the results of the 2017 trial: if a report by Senators Jean-Marie Bockel and Mathieu Darnaud tried to reassure by saying that “the exercise of the exemption is contrary to the culture of officials, whose job is to apply the law and discard applications that go against it: the principle of equality is deeply ingrained in the mindset of officials,” experience shows that some departments (territorial bodies comparable to our provinces) have applied waivers extensively. For example, while it is true that to date the prefect of the Bas-Rhin department has never applied the measure believing that it could tear up the principles of equality established by laws and the Constitution, in Loire-Atlantique there have been nineteen cases of exemptions. “Some prefects,” say Saint-Georges and Rykner, “were afraid of the consequences of this rule, and others, like the prefect of the Vendée, used it gallantly, showing spectacular flexibility in the interpretation of texts.”

Saint-Georges and Rykner bitterly conclude by writing that “if heritage is one of the possibilities of our country, as well as an extraordinary lever for growth, then it will all be sacrificed to the multiple local interests that have nothing to do with the protection of historical monuments. Tourism, which is a very significant part of the national economy, will be the first to suffer, because it is unlikely that a France handed over to real estate agents and wreckers can still attract tourists.”

Pictured: the abbey of Sénanque in the beautiful landscape of Provence.

Deregulation in France: criticism of a decree allowing prefects to circumvent regulations on culture and the environment

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