Expert lawyer in methanation law

Are you a farmer, agri-food industrialist, local authority or project leader and are you considering installing a site to recover organic waste into biogas and digestate? Are you wondering about the administrative procedures and regulatory constraints linked to this activity? Our lawyers specialized in methanization law provide you with cutting-edge legal expertise to support you at every stage of your project.

Faced with climate challenges and the need for an energy transition, methanization is emerging as a promising solution. Given the growth of this sector, it is necessary to clarify the legal implications for agricultural operators. Its legal framework encompasses aspects of environmental law, public law, rural law, and energy law.

Support from our specialized lawyers in methanation law for the establishment of biogas production sites

Methanization is a biological process of fermentation of organic matter that allows the production of biomethane.

Organic materials on farms include, among others:

• food waste (fruit and vegetables);
• household waste;
• agricultural residues (slurry manure);
• industrial waste (cereal dust).

This renewable energy, non-intermittent and storable, plays an essential role in the energy mix and strengthens French energy sovereignty. However, the installation of methanization units is subject to specific constraints regarding locations and urban planning rules, particularly in agricultural areas.
Our specialized lawyers in methanization law support sector players in all stages of installing their methanizers, ensuring compliance with current regulations. The installation of methanization units, even in agricultural areas (A) according to Local Urban Plans (PLU) or Intercommunal Local Urban Plans (PLUi), is possible under certain conditions.

Traditionally, construction in zone A requires the demonstration of an indispensable link between the construction and the agricultural activity. To install one or more methanizers, it is necessary to obtain a planning authorization depending on the installation zone and to comply with ICPE regulations.

Chez Macfarlanes LLP, nous vous aidons à démontrer que votre projet de méthanisation est indispensable à votre activité agricole. Nous vous conseillons également sur les autres zones d’installation possibles et les démarches administratives associées. Notre équipe d’experts vous accompagne dans la constitution des dossiers de demande de permis de construire et les autorisations nécessaires pour exploiter votre installation.

Lawyer specialized in methanization law for the installation of methanizers with regard to urban planning rules

The establishment of a methanization site is closely linked to its legal qualification, which determines the applicable urban planning rules. According to article D311-18 of the rural code, the production of biogas by methanization can be considered an agricultural activity under certain cumulative conditions. Our lawyers specialized in methanization law help you determine if your project meets these criteria and advise you on the steps to take.

To be classified as an agricultural activity, the methanization unit must be operated and the biogas marketed by a farmer. This farmer may be an individual or a legal entity, provided that, in the case of a legal entity, at least one partner holding at least 50% of the shares is themselves a farmer.

This qualification generally allows the construction of methanization units on plots classified as agricultural zones (A), subject to compliance with other regulations in force. Furthermore, a methanization unit may also be qualified as a 'collective interest facility' if the biomethane produced is primarily injected into the distribution network.

This qualification opens the possibility of establishing the unit in zones allowing facilities of collective interest according to the applicable urban planning document, thus offering more flexibility in terms of location. Our team supports you in justifying your status as a farmer to the competent authorities. We also advise you on the strategy to adopt to obtain the qualification "facility of collective interest".

Specialized lawyer in methanation law to install methanizers compliant with environmental requirements

The establishment of a methanization unit necessarily involves taking into account environmental regulations, particularly those relating to ICPE. Indeed, Classified Installations for Environmental Protection are intended to receive waste for the production of biogas.

The regime applicable to a ICPE depends on the nature and quantity of waste treated: a declaration, registration or prefectoral authorization. Our lawyers specialized in methanization law guide you in identifying the ICPE regime applicable to your project. In accordance with article R511-9 of the environmental code, the ICPE nomenclature targets methanization installations for non-hazardous waste or raw plant material.

Excluded are wastewater methanization installations or urban sewage sludge when they are methanized on their production site. Two cases are distinguished depending on the nature of the waste treated. When it involves raw plant matter, livestock effluents, manure, whey, and plant waste from the agri-food industry, the ICPE regime varies depending on the quantity of material treated daily.

Thus:

• a treatment capacity equal to or greater than 100 tonnes per day subjects the installation to authorization;
• a treatment between 30 and 100 tons per day subjects it to registration;
• a treatment capacity of less than 30 tonnes per day subjects it to a declaration.

On the other hand, for other non-hazardous waste, treatment equal to or greater than 100 tonnes per day also subjects the installation to authorization. Conversely, treatment of less than 100 tonnes per day subjects it to registration. We precisely analyze the nature and quantities of waste you plan to treat in order to determine the applicable ICPE regime and ensure regulatory compliance.

We support you in the declaration formalities, registration or application for ICPE authorization. Likewise, our lawyers in environmental law and renewable energies advise you on the environmental obligations related to the operation of your methanization unit.

Methanization facilities and rural leases: what you need to know?

Does an operator who diversifies their agricultural holding and dedicates their production to methanization risk the termination of their lease? A recent ministerial response of 6 January 2022 provides an important clarification. The mere fact that a tenant now dedicates all of their cereal production to methanization, instead of animal and human food, does not in itself constitute a sufficient ground for termination of a rural lease.

For the termination to be justified, the landlord must demonstrate a challenge to the proper operation of the property, beyond the simple change in the purpose of the crops. The Government emphasizes the need to maintain a balance between the food and energy uses of crops at the national level.

Article D. 543-292 of the Environmental Code governs the supply of installations for the methanization of non-hazardous waste or raw plant materials. It limits to 15% of the total gross tonnage of inputs per calendar year the share of food or energy crops grown as a main crop.

Thus, a lease cannot be terminated solely because the tenant now allocates all their cereal production to methanization, as long as the other lease obligations and environmental requirements are met. Our lawyers specialized in methanization law analyze rural leases and agricultural practices to assess the risk of termination. We are also able to advise operators on measures to secure their situation.

Lawyer specialized in methanation law to defend the interests of third parties facing methanizer installation projects

The installation of a methanizer can raise concerns and opposition from residents or other third parties affected by potential nuisances or dangers related to its operation. It is important to understand the rights of these third parties and the legal remedies available to them. Our lawyers specialized in methanization law assist stakeholders, whether operators or third parties, in defending their interests.

The ICPE regulations provide mechanisms allowing interested third parties to challenge decisions relating to classified installations. In accordance with Article R. 514-3-1 of the Environmental Code, these third parties have a period of 4 months from the publication of the decision to bring an appeal.

As for the operator, they have a period of 2 months from the notification of the decision to contest it. The administrative judge carefully examines whether third parties contesting an ICPE decision have a sufficiently direct interest to request its annulment. This interest is assessed based on the inconveniences and dangers that the installation poses to these third parties, taking into account their geographical situation and the configuration of the premises.

For example, in a recent case (CAA Nantes, March 7, 2023, No. 21NT00131), the owners of a castle located near a methanization and combustion project (approximately 350 meters away) were recognized as having a legal interest to act. Indeed, it was demonstrated that the operation of the installation presents potential risks of soil and watercourse pollution, as well as olfactory and noise nuisances for the occupants.

Our lawyers specialized in methanation law inform you about the deadlines and procedures to follow in order to exercise a remedy. At Macfarlanes LLP, our experts advise you on the elements to gather to demonstrate your interest in taking action against an ICPE and defend your rights.