He hasn’t had more for more than 31 days in France. Usual summer refrain, perhaps, if we weren’t… in the middle of winter. Unheard of, according to Météo-France. To make matters worse, the summer of 2022 had also been the scene of major droughts. While Emmanuel Macron has just announced “a sobriety plan on water”, a group of mayors recently decided to suspend all new construction in the Var, judging their water resources insufficient to accommodate new citizens. For these municipalities, last year, the decrees on water ended in December 2022. And here they are again restricted, in the middle of January.
For Ludivine Vandevoorde, lawyer in environmental law and construction law at the Paris Bar, this action marks an awareness. Like these decrees, which run over four or five years depending on the municipality, the climate crisis is not the case of one-off disruptions but is a long-term one. And what better than the law to approach the long term? Avenues for reflection with the specialist who is preparing a thesis in criminal protection of environmental commons.
L’Express: The initiative of the city councilors of the Var has been talked about. Is this an important act?
Ludivine Vandevoorde: With these decrees, the mayors anticipate the environmental problems that will arise in their municipality in the near future. It’s new, and it marks an interesting realization. Especially since prohibiting the growth of the population on the municipal territory over several years is not insignificant. The question of the number of inhabitants is an important issue, it could condition, for example, the opening or closing of the municipal school.
Have the mayors exceeded their prerogatives?
In principle, it is the mayors who issue town planning permits. The decrees therefore fall within their field of competence, it is not a far-fetched initiative. It should be noted that municipal decrees provide for a suspension of planning permission for a period of 4 to 5 years, which is surprising.
Article L.424-1 of the Town Planning Code provides for a stay of ruling on town planning authorizations in specific situations, but it must not exceed 2 to 3 years. I see this as a form of awareness of the long-term consequences of the climate crisis. The mayors do not consider that it is episodic, and in this, this initiative is quite innovative.
Can we expect appeals?
Yes of course. From construction companies or people who would like to settle, or even owners who would have liked to divide their land to sell. People won’t agree. It remains to be seen whether the mayors were in their right.
The judges will look at which side the city councilors are on. Which approach takes precedence? Is it a question of town planning? Or a question of public order linked to the safeguard of human dignity, by wanting to prevent new citizens from settling when the water reserves do not allow it? If so, the arrests could be legal. On the other hand, if the judge considers that it is primarily a question of water management, no, because water is a prerogative of the prefect.
What are the new legal battles hatching with these repeated episodes of drought?
One of the major current legal and legislative battles is being played out over compensation for drought. Who is considered a victim, who is not? The law of December 28, 2021, and the ordinance of February 8, 2023 – therefore less than a month ago – have improved the consideration of the question of clay soils for example. The drought compresses the basements, which generates significant damage to homes. 10.4 million homes would be affected by this phenomenon. So many potential legal conflicts…
But the drought is just one of the legal battles fueling the climate crisis. We see it with the multiplication of appeals around the establishment of basins, these large agricultural water reserves, or with the conflicts around requests for exemption to build on protected areas, it is a burning question.
What is at stake each time is the prioritization of the different interests. Which takes precedence, freedom of enterprise, economic development, or environmental protection? In this, questions of environmental law are fundamental.
At the Agricultural Show this Saturday, Emmanuel Macron declared “rather than organizing under duress at the last moment with conflicts of use, we must plan all that”. With the initiative of the mayors of the Var, we see that the question will also relate to the possibility of setting up in the threatened territories. Should the State better plan construction, based on ecological criteria, or on the contrary delegate more power to the municipalities?
Urban planning already incorporates ecological criteria, especially since the Grenelles laws of the 2010s, which place the protection of the environment “at the forefront of priorities” of the nation. There is an impulse from the legislator, visible in the law, it is undeniable. This has concrete implications.
We can cite, for example, the establishment of ecological corridors, to allow animals to circulate in our facilities. Another example: on a municipal territory, the Local Urban Plan must be compatible with the master plans for development and water management, decided by the State. Then, it is up to local authorities to achieve these objectives, with a certain leeway.
Should French law be better equipped in this area?
In 2005, the Environmental Charter was incorporated into the Constitution. This is a great recognition of the importance of environmental protection in our legal order. So, theoretically, French law is already relatively well equipped. But in practice, it is difficult to establish a hierarchy of interests. There is still a problem of societal values. Environmental offenses are considered less serious than the offense of theft or burglary.
But the situation is changing. Training courses are aimed at legal professionals. They make it possible to accelerate awareness of the importance of climate issues. Overall, the penalties relating to environmental offenses are more and more important.
Should we better protect access to water, or better regulate construction?
We already have a lot of planning documents [Rires] ! But, it’s a good question. For example, drought by-laws restrict access to water, but legislation could focus more on long-term, rather than emergency, water allocation. We could also review the maximum quantities granted to people, during the limitation period. Do we really need 200 liters of water per person, per day, during a restriction period? The paradigm has changed, it is necessary to ask the question.