stitutional Council Affirms Public Participation in Environmental Decision-Making: Scope and Implications of Article 7, Charter for the Environment
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Constitutional Council, public participation, environmental decision-making, negative incompetence, Article 7, Charter for the Environment, Decision n° 2021-891 QPC, 19 March 2021, Association Générations futures, environmental procedural guarantees, public decisions, environmental impact, legislator competence, administrative authorities, Rural Code, Environment Code, constitutional value, public participation principle, departmental engagement charters, QPC decision, constitutional principle, environmental consequences, jurisprudence, legislative body, regulatory power, unconstitutionality, Constitutional Council decision
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the full potential of environmental decision-making with the Constitutional Council's landmark Decision n° 2021-891 QPC. This pivotal ruling reaffirms the constitutional value of public participation in shaping public decisions that impact the environment, as enshrined in Article 7 of the Charter for the Environment. By associating the principle of public participation with the concept of negative incompetence, the Council ensures the effective implementation of environmental procedural guarantees. Discover how this decision strengthens the role of public engagement in environmental governance and its implications for policymakers, stakeholders, and communities. Dive into the details of this groundbreaking judgment and its far-reaching consequences for sustainable decision
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[...] For the Council, and following a jurisprudence already established, the principle of public participation in the development of public decisions having an impact on the environment is obviously invoked in QPC. The principle of negative incompetence is also invoked in addition to this provision, and it is on this double basis that the Constitutional Council will rule on the unconstitutionality of the provision in question, while ensuring the effective effect of the decision for the applicants. The Constitutional Council therefore recalls the procedural guarantees surrounding environmental decisions which allows it to ensure its application to departmental commitment charters (II). I. [...]
[...] For the CC, the provisions are no longer in force. But it guarantees the useful effect of the decision by applying the decision to the cases not definitively judged (§17). ? Critique of the reasoning: see the end of S. Sydoryk's article, 'Necessary consultation of residents for the application of pesticides', Dalloz actu 23 March 2022. Important scope, but reduced since for the CC the provision is no longer in force, although the text has not changed. [...]
[...] The guarantee affirmed of the principle of public participation in environmental decision-making For the Constitutional Council, departmental engagement charters are public decisions which requires the legislator to draw the consequences of its competences by providing the details of public participation in their elaboration A - The recognition of the \"public decision\" nature of departmental commitment charters ? For the principle of participation to apply, there must necessarily be a \"public decision\". The CC must rule on departmental charters. ? For the CC, decision of a public person consequence on the environment (§10), therefore Article 7 of the Charter applies (§11). [...]
[...] It raises its unconstitutionality, in view of Article 7 of the Charter of the Environment and the principle of public participation in the development of public decisions having an impact on the environment. It adds that the legislator has overlooked the extent of his competence by referring the details of the participation modalities to the regulatory power. On the level of Article 7 of the Charter, the applicants add that the legislator would not have aimed at the public as a whole, but would have only allowed representatives to develop the charters, while entrusting users of pesticides with the task of organizing this consultation without guaranteeing their neutrality and impartiality. [...]
[...] (See 2011-183/184 QPC for the 1re utilisation of the principle) B - The recognition of the principle of the legislative body's negative incompetence in environmental matters ? Principle of negative incompetence: §6. General idea: the legislator cannot delegate its constitutional powers to the regulatory power. ? Invocable in QPC that if it is in support of the violation of another constitutional right: 2010-5 QPC, SNC Kimberly Clark. ? Conclusion on the principle: the legislator cannot delegate to the regulatory power the details of the public participation procedure of article 7 of the Charter. [...]
