Emmanuel Macron, June 29, 2020 in the gardens of the Elysée.
-
Stephane Lemouton-POOL
This is one of the 149 measures proposed by the Citizens' Convention: reform the Constitution to better include the defense of the environment, in particular by adding a paragraph to its 1st article.
Emmanuel Macron wants to propose a referendum on this project, which some NGOs, such as the Nicolas Hulot Foundation, welcome.
But what impact would the addition of this new paragraph have in practice?
“None”, considers the lawyer specializing in the environment Arnaud Gossement, who fears much more that this reform weakens the Charter of the environment.
A text already present in the French constitutionality bloc.
“A constitutional reform” to “introduce the concepts of biodiversity, the environment, the fight against global warming” in article 1.
Of the three hours of discussions on Monday evening between Emmanuel Macron and the members of the Citizen's Convention for the Climate, it is this announcement by the President of the Republic that has attracted the most attention.
Successful bet ?
Arnaud Gossement, lawyer specializing in the environment, sees in it the government's desire to divide environmentalists on a divisive subject and to divert attention to the detriment of the other proposals identified by the 150 citizens of the Convention.
On the legal level, it is in any case formal: “this constitutional reform would bring absolutely nothing more in terms of environmental protection.
"
Old sea serpent of the Macron five-year term?
This modification of the Constitution, with the stated objective of better taking into account the defense of the environment, is an old sea serpent of the five-year term of Emmanuel Macron.
As early as 2018, the government had proposed adding this paragraph to Article 1: "The Republic ensures a high and constantly increasing level of environmental protection, in particular for the protection of biodiversity and action against change. climate ”.
A project twice retaken by Parliament.
The Citizens' Convention brought the subject back to the table.
It also proposes a new paragraph in article 1 of the Constitution: "The Republic guarantees the preservation of biodiversity, the environment and the fight against climate change".
Arnaud Gossement is already ticking off the subject: "the Republic".
“We cannot sue the Republic, it is a moral value but not a subject of law,” he explains.
"The Republic guarantees" does not mean anything then.
No more, for example, than "the chair guarantees" ".
Setbacks from the Environmental Charter?
Arnaud Gossement sees this as a first step backwards from the Environmental Charter, adopted by Parliament in 2004 and incorporated into the constitutional bloc in 2005. Its article 2 stipulates that “everyone has the duty to take part in the preservation and improving the environment ”.
This same article 2 also links preservation and improvement of the environment, “when the paragraph proposed by the Citizens' Convention does not retain preservation, continues the lawyer.
This is again a step back.
It is not only necessary to repair the damage of the past, it is also to improve the current state of the environment.
"
The distinction between “biodiversity”, “environment” and “fight against climate change” made by the Citizens' Convention hardly appeals to the lawyer.
“The Environmental Charter was concerned with not 'slicing up' the environment but rather seeing it as a whole,” he explains.
Rightly so, these themes are closely linked.
The impacts on biodiversity will have an impact on climate change and vice versa.
"
A useful addition to the Environmental Charter? ...
On the contrary, we could say that the addition of this paragraph would make it possible to include, a little more still, the “defense of the environment” in the fundamental texts of the Republic.
This is the position of the Nicolas Hulot Foundation (FNH), which takes as an example the recent decision of the Constitutional Council on the reauthorization of neonicotinoids.
"This attests to the urgency of placing the environment at the top of the hierarchy of standards to ensure that the public authorities carry out a policy that makes it possible to fight against climate change and to protect biodiversity", reacts the NGO. in a press release.
In March 2018, in an interview with
20 Minutes
, Pascal Canfin, then Director General of WWF France, also defended this constitutional reform as a need to complete the Environmental Charter.
"The whole limit of this text [the Charter] is to state the main principles which cannot be used in practice by constitutional judges", he justified.
WWF France then proposed this sentence, ideally to be added in Article 1 of the constitution: “While respecting biodiversity, public policies ensure the fight against climate change.
"A good compromise between too general words which do not allow the judge to use them and a too restrictive formulation which would not be up to the stakes and would not integrate at all the notion of biodiversity", he defended.
Guaranteeing the protection of the climate and biodiversity in Article 1 of the Constitution would be a step forward.
On the other hand, there is an urgent need to revise upwards the ambition of the climate law which is not up to par.
https://t.co/QcYn4ywE1K
- Nicolas Hulot (@N_Hulot) December 15, 2020
… Or the risk of duplicating?
Arnaud Gossement brushes aside these arguments.
"The Environmental Charter has no less value than the Constitution in the block of constitutionality", he begins.
He also fears, in these third paragraph proposals, "a detrimental duplication with the Environmental Charter".
“We would end up with two conflicting texts,” he said.
The whole question will then be how the constitutional judge will decide.
"
He too takes for example the validation by the Constitutional Council of the reauthorization of neonicotinoids.
This court "could very well have rejected this law by referring to" the duty to improve the environment "which appears in the Environmental Charter, continues Arnaud Gossement.
He did not do it and, tomorrow, if this paragraph 3 is added, he will have one more argument not to do so by simply saying that article 1 of the Constitution does not stipulate this duty of improvement.
"
The question of means before that of the text
And then Anne Roques, jurist at France nature environnement (FNE), wonders about the real scope of this reform.
“Not only does the Constitutional Council not always render decisions in favor of what one might think is good for the environment, but the majority of the measures which impact it now pass directly into law,” recalls. she.
Without any control by the Constitutional Council ”.
More than touching the current constitutional block, the priority, in the eyes of both Anne Roques and Arnaud Gossement, is "much more to apply the current texts and give the means to justice to do so," they all say. of them.
Judges, officials and additional police to prosecute environmental offenses, ”calls the lawyer.
What is the reform of environmental justice, another project opened by the government?
The bill provides, in particular, for a specialized environmental jurisdiction at the level of each of the thirty-six courts of appeal for actions relating to ecological damage and civil liability.
But also the strengthening of the prerogatives of the agents of the French Biodiversity Office by making them become judicial police officers, with national competence.
“When we look at the human resources allocated to support these changes, we fear the empty shell,” comments Anne Roques.
New jurisdictions specializing in the environment are not being created, but this jurisdiction is assigned to existing and already overwhelmed jurisdictions.
The OFB, for its part, will be impacted by staff reductions in 2021 and 2022.
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