The Council of State and the fight against global warming

The Council of State has just issued an important decision in the fight against global warming.
Indeed, by its decision No. 471782 of July 24, 2024, the Council of State confirmed the administration's right to refuse the issuance of an exclusive hydrocarbon exploration permit, invoking a "general interest reason" related to "limiting global warming" and compliance with France's commitments under the Paris Agreement on climate of December 12, 2015.

• Reminder of the facts and procedure (CE, July 24, 2024, n°471782)

The company EG Lorraine filed an application for an exclusive permit to search for liquid or gaseous hydrocarbons. This application was rejected.
The company EG Lorraine contested this decision and won its case on July 22, 2020 before the administrative court of Strasbourg, which annulled the ministerial decision. The Nancy Administrative Court of Appeal dismissed the appeal.
The Minister of Ecological Transition lodged an appeal and, by the decision rendered on July 24, 2024, the Council of State annulled the judgment of the administrative court of appeal and referred the case back to it.

• The applicable regulations regarding exclusive research permits

The Council of State's decision is based on a reinterpretation of the provisions of the Mining Code, in light of France's climate commitments.

In this regard, according to the Mining Code, the purpose of the exclusive exploration permit is to grant its holder the exclusive right to carry out research work and to dispose of extracted products (L.122-1 of the Mining Code).
Article L.161-1 lists the protected interests, including notably environmental protection but without explicitly mentioning climate change.

Nevertheless, although the Mining Code does not explicitly refer to the fight against climate change, this protection of the environment is implicitly included in the objectives of sustainable development and reduction of greenhouse gas emissions, as provided for in Articles L.100-3 of the Mining Code and L.110-1 of the Environmental Code.

Moreover, the Council of State had already recognized an "objective of general interest" of limiting global warming in its previous decisions (No. 419316 of June 27, 2018 and No. 421004 of December 18, 2019).

The decision of July 24, 2024 uses the term "general interest reason", thus offering increased flexibility and allowing the administration to reject requests for exclusive research permits due to the issue of limiting global warming:
"When the administration is seized of a request for the issuance of such a permit, it may reject it based on a general interest reason directly related to the purpose of the authorization in question. With regard to hydrocarbon research permits, limiting global warming by reducing greenhouse gas emissions and fossil fuel consumption constitutes such a reason."

• The contribution of the Council of State decision

– The consecration of the "general interest reason" relating to the limitation of global warming:

The Council of State has established a "general interest reason" in its decision, which relates to limiting global warming, including France's compliance with its commitments arising from the 2015 Paris Agreement.

Signed in 2015, this international agreement aims to limit global warming by reducing greenhouse gas emissions. The signatory countries, including France, have committed to taking measures to limit the increase in global temperature to well below 2°C compared to pre-industrial levels and to pursue efforts to limit this increase to 1.5°C.

France has strengthened its environmental policies to meet its climate commitments, notably through the transition to renewable energies and the reduction of dependence on fossil fuels, such as hydrocarbons.

– The administration's refusal to issue an exclusive research permit:

In its decision, the Council of State specifies that the administration may reject an application for an exclusive research permit based on France's energy policy choices, in connection with commitments made under the Paris Agreement on climate of December 12, 2015, and the guidelines and objectives of the law of August 17, 2015 on energy transition for green growth, aimed at promoting renewable energies and reducing fossil fuel consumption.

This decision confirms that the administration can invoke a "reason of general interest" to refuse a request for an exclusive research permit, even if the project otherwise meets technical and financial requirements. The "reason of general interest" includes not only limiting global warming but also promoting renewable energies and reducing fossil fuel consumption.

The decision n°471782 of the Conseil d’État represents an important step in the legal recognition of climate objectives in France. By allowing the administration to refuse hydrocarbon exploration permits on the basis of a « general interest reason » linked to limiting global warming, the Conseil d’État affirms the importance of the fight against climate change in administrative decisions. This decision paves the way for a more systematic integration of France’s climate commitments in the application of administrative and environmental law.

Written by Camille WAUTIER and Ambre LOUPIT

 

Environment / Renewable Energies