The company ‘EDF Production Électrique Insulaire’ intended to replace an old thermal power plant in French Guiana, France’s overseas region, which, due to its obsolescence and future compliance with regulatory standards, had to be shut down by December 31, 2023. A decree dated March 30, 2017 set forth the replacement of the thermal power plant by a new thermal power plant; the operation of this power by EDF was authorized by an order of the territorial authority on June 13, 2017. By an order dated October 22, 2020, the Prefect of French Guiana issued an environmental authorization for a new oil-fired thermal power plant construction project to proceed.
On July 7, 2021, two environmental organizations (Guyane Nature Environnement and France Nature Environnement) requested the suspension of such authorization to the interim relief judge (juge des référés) of the administrative court of French Guiana. On July 27, 2021 and September 7, 2021, the judge of the administrative court granted the request and suspended the authorization considering that there were serious doubts about the legality of the authorization. The suspension was based on: (i) the objectives of reducing greenhouse gas (GHG) emissions defined by law (-40% between 1990 and 2030), and (ii) the provisions of the urban planning code relating to the limited extension of urban development in areas close to the shoreline.
On August 11, 2021, the Minister of Ecological Transition and EDF Production Électrique Insulaire asked the Council of State to overturn the suspension of work of the future power plant. On February 10, 2022, the Council of State granted these requests and overturned the suspension of the Larivot power plant environmental authorization decided by the interim relief judge of the administrative court of French Guyana. The Council of State considered that there was no legal requirement to take into account the national energy policy objective of reducing GHG emissions by 40% between 1990 and 2030, as set out in article L. 100-4 of the Energy Code, for authorizations that do not relate to the operating of a power plant producing electricity using fossil fuels.
The decision is based on the distinction between the conditions of issuance of an environmental authorization and the conditions of issuance of an authorization to operate the plant. The environmental organizations have contested the environmental authorization on the ground of breach of article L. 100-4 of the Energy Code. However, environmental authorizations must comply with the objectives of reducing GHG emissions as set forth in article L. 100-4 only in specific cases, and this was not one of them since it did not entail the authorization to operate the plant (which had been previously granted).
With regards to article L.121-40 of the French Urbanization Code and the limited extension of urban development near coastlines, the Council of State held that the provision only applies to decisions authorizing urban developments. Therefore, the provision is not applicable to environmental authorizations, the purpose of which is not to authorize the construction of one or more facilities, but rather to authorize the future operation of such facility. The Council of State applied the principle of independence of legislation.