Key Benefits:
(SCHUEPBACH ENERGY CORPORATION)
The Constitutional Council has been Entered on 12 July 2013 by the Council of State (Decision No 367893 of 12 July 2013), under the conditions laid down in Article 61-1 of the Constitution, a priority question of constitutionality by Schuepbach Energy LLC, on the conformity with the rights and freedoms guaranteed by the Constitution of Articles 1 and 3 of Law No. 2011-835 of 13 July 2011 To prohibit the exploration and exploitation of liquid or gaseous hydrocarbon mines by hydraulic fracturing and to repeal the exclusive research permits involving projects using this technique.
The Commission Constitutional,
Given the Constitution;
Seen Order n ° 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Given the Environment Code;
Seen Law n ° 2011-835 of 13 July 2011 to prohibit the exploration and exploitation of liquid or gaseous hydrocarbon mines by hydraulic fracturing and to repeal the Exclusive research licences involving projects using this Technical;
In view of the Regulation of 4 February 2010 on the procedure before the Constitutional Council for priority questions of constitutionality;
In view of the request for intervention for the Rhône-Alpes region by SELARL Antelis Coïc Romi Associate, Lawyer at the Bar of Lyon, registered on 25 July 2013, together the decision of the Conseil constitutionnel de non-admission of this application of 2 August 2013, the request for intervention produced for the Ile-de-France region and the Seine-et-Marne department by SELARL Huglo Lepage and partners Council, Lawyer at the Paris Bar, registered on 30 July 2013, together the decision of the Conseil constitutionnel de non-admission of this application of 2 August 2013, the application for intervention produced for the association " Defence of the environment and heritage in Doué and the surrounding municipalities ", the" National Movement for the Environment " And Mr Jean-François DIRRINGER by SELARL Huglo Lepage et associés Conseil, registered on 30 July 2013, together the decision of the Conseil constitutionnel de non-admission of this application of 2 August 2013, the request for intervention produced for Mr. José BOVÉ by CPC Waquet, Farge, Hazan, lawyer at the Conseil d' Etat and the Court of Cassation, registered on 31 July 2013, together the decision of the Conseil constitutionnel de non-admission of this application of 2 August 2013, the request for intervention Produced for Sylviane BAUDOIS, Martine DAURES, Marie CHIORRI and Sonia TORREGROSSA And MM. Nicolas DAURES, Cyril DARNIS, François FAVRE, Christophe MIGNON and Stéphane LINOU by SELARL Christophe Lèguevaques Lawyer, lawyer at the Paris Bar, registered on 31 July 2013, together the decision of the Conseil constitutionnel de non-admission de This request of 2 August 2013, the request for intervention produced for Mrs Sylviane BAUDOIS, Martine DAURES, Isabelle LEVY and Sonia TORREGROSSA and MM. André BORG, Nicolas DAURES, François FAVRE, Christophe MIGNON and Stéphane LINOU et l' association " Living well in the Gers " By SELARL Christophe Lèguevaques Lawyer, registered on 5 August 2013, together the decision of the Conseil constitutionnel de non-admission of this application of 7 August 2013 and the request for intervention produced for the department of Ardèche by Helios Lawyers, lawyer at the Lyon Bar, registered on 2 September 2013;
In view of the comments made by the association " France Nature Environnement ", registered on 5 and 29 August 2013;
In view of the intervention observations produced for the association" Greenpeace France ", by the CPC Faro and Gozlan, lawyer at the Paris Bar, registered on 5 August 2013;
In view of the observations filed for the applicant company by Marc Fornacciari, lawyer at the Paris Bar, registered on 6 August 2013 ;
In view of the observations filed by the Prime Minister, registered on 6 August 2013;
Seen the exhibits filed and attached to the file;
Me Fornacciari, for the applicant company, Stéphane Le Briero, lawyer at the Paris Bar, for The association " France Nature Environnement ", Mr. Alexandre Faro, lawyer at the Paris Bar, for the association" Greenpeace France " And Mr. Thierry-Xavier Girardot, appointed by the Prime Minister, having been heard at the public hearing on 24 September 2013;
The rapporteur has been heard;
On admission of interventions:
1. Considering that, according to the second paragraph of Article 6 of the Regulation of 4 February 2010: Where a person justifies a special interest in responding to a priority question of constitutionality within three weeks of the date of his or her transmission to the Constitutional Council, Mentioned on its website, the latter shall decide that all the documents of the procedure shall be addressed to it and that such observations shall be transmitted to the parties and authorities referred to in Article 1. They shall have a time limit for responding to them. In the event of an emergency, the President of the Constitutional Council shall order such transmission " ;
2. Considering that associations " France Nature Environnement " And " Greenpeace France " Have a special interest in intervening in the review of this priority constitutionality issue; that these interventions are accepted by the Constitutional Council; and
On the merits:
3. Considering that the terms of Article 1 of the Law of 13 July 2011 referred to above : Pursuant to the 2004 Environment Charter and the principle of preventive action and correction provided for in Article L. 110-1 of the Environment Code, the exploration and exploitation of liquid or gaseous hydrocarbon mines by drilling Followed by hydraulic fracturing of the rock is forbidden on the national territory " ;
4. Considering that the terms of article 3 of the law of 13 July 2011 above :
" I. Within two months of the promulgation of this Law, holders of exclusive permits for the investigation of liquid or gaseous hydrocarbon mines shall submit a report to the administrative authority which has issued the permits. Specifying the techniques used or contemplated in the course of their research activities. The administrative authority makes this report public.
" II. -If the holders of the permits have not submitted the report prescribed to the I or if the report refers to the use, actual or potential, to drillings followed by hydraulic fracturing of the rock, the exclusive research permits concerned are Revoked.
" III. -Within three months of the promulgation of this Law, the Administrative Authority shall publish in the Official Journal the list of the repealed exclusive search
. IV. -The conduct of drilling followed by hydraulic fracturing of the rock without having declared it to the administrative authority in the report provided for in the I shall be punished with one year in prison and a fine of 75,000 euros " ;
5. Considering that, according to the applicant company, the provisions of Article 1 of the Act of 13 July 2011 infringe the equality before the law as well as the freedom to undertake and disregard the precautionary principle enshrined in the article 5 of the Charter of the Environment; that the provisions of Article 3 of the Law of 13 July 2011 would undermine the guarantee of rights and the right to property; finally, the whole of the contested provisions would disregard the principle of Reconciliation of public policies with the protection and presentation of The environment, economic development and social progress enshrined in Article 6 of the Environment Charter;
With regard to the complaint alleging disregard of the principle of equality before the law:
6. Considering that, according to the applicant company, by prohibiting the use of any hydraulic fracturing of the rock for the exploration and exploitation of liquid or gaseous hydrocarbon mines, whereas this fracturing process Hydraulic of the rock remains allowed for geothermal, section 1 of the law of July 13, 2011 disregards the principle of equality before the law;
7. Considering that article 6 of the Declaration of the Rights of Man and the Citizen of 1789 provides that the law " Must be the same for all, either protecting or punishing " ; that the principle of equality does not preclude the legislator from dealing with different situations in different ways, nor that it derogates from equality for reasons of public interest, provided that, in either case, the difference in The resulting treatment is directly related to the purpose of the legislation that establishes it;
8. Considering that in the state of the techniques, the drilling processes followed by hydraulic fracturing of the rock applied for the research and the exploitation of hydrocarbons differ from those applied to stimulate the circulation of water in the Geothermal reservoirs both by the number of boreholes required and by the nature of the rocks subjected to hydraulic fracturing, as well as by the characteristics and conditions of use of the products added to the water under pressure for the Fracturing; that, by limiting the scope of the prohibition to only Drilling followed by hydraulic fracturing of the rock for the exploration and operation of liquid or gaseous hydrocarbon mines, the legislator treated different methods of research and mining of mining resources differently ;
9. Considering that by prohibiting any use of hydraulic fracturing of the rock to seek or exploit hydrocarbons in the national territory, the legislator has heard the risk that this research and exploitation process should be prevented Hydrocarbons are likely to cause the environment to run; it is also apparent from the travaux préparatoires that the legislator considered that the hydraulic fracturing of the rock to which it is used to stimulate the circulation of Water in geothermal reservoirs does not present the same risks for The environment and that it has heard that it does not hinder the development of the exploitation of the geothermal resource; thus the difference in treatment between the two processes of hydraulic fracturing of the rock resulting from Article 1 Is in direct relation to the object of the law that establishes it;
With respect to the grievance alleging ignorance of the freedom to undertake:
10. Considering that the applicant company disputes the infringement of the freedom to undertake as a result of the prohibition on the use of boreholes followed by the hydraulic fracturing of the rock;
11. Considering that it is open to the legislator to bring to the freedom to undertake, which derives from Article 4 of the 1789 Declaration, limitations relating to constitutional requirements or justified by the general interest, provided that it Does not result in disproportionate damage to the objective pursued;
12. Considering that the prohibition on the use of boreholes followed by the hydraulic fracturing of the rock for the search or exploitation of hydrocarbons in the national territory is general and absolute; that it has the effect of preventing Only to the development of hydrocarbon research " Unconventional " But also the continuation of the exploitation of hydrocarbons " Conventional " By means of this process; and by prohibiting the use of boreholes followed by hydraulic fracturing of the rock for all hydrocarbon research and operations, which are subject to an administrative authorisation scheme, the Parliament has pursued a general interest in the protection of the environment; that the restriction resulting from Article 1 of the Law of 13 July 2011 for both research and the exploitation of hydrocarbons is not The state of knowledge and techniques, a disproportionate character The objective pursued;
With regard to the grievances arising from the lack of knowledge of Articles 2, 16 and 17 of the 1789 Declaration:
13. Considering that, according to the applicant company, by providing for the abrogation of the exclusive licences for investigations of hydrocarbons which had been lawfully issued to their owners, Article 3 of the Law of 13 July 2011 infringers the right to respect Legally acquired situations guaranteed by Article 16 of the 1789 Declaration and the right of ownership of those holders of exclusive research permits;
14. Considering that Article 16 of the 1789 Declaration states that: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ; that the legislator would disregard the guarantee of the rights if it was for the legally acquired situations to be infringed which is justified by a sufficient general interest;
15. Considering that ownership figures in the number of human rights enshrined in Articles 2 and 17 of the Declaration of 1789; that Article 17: Since property is an inviolable and sacred right, no one can be deprived of it, except when the public need, legally recognized, requires it, of course, and under the condition of fair and prior compensation " ; that, in the absence of deprivation of the right to property within the meaning of that article, it follows from Article 2 of the 1789 Declaration that the infringement of that right must be justified on grounds of general interest and proportionate to The objective;
16. Considering, first, that article 3, paragraph I, imposes new reporting obligations on the holders of exclusive hydrocarbon research permits within two months of the promulgation of the Act of 13 July In addition, Article 1 of the Act prohibits, from the entry into force of the law, any recourse to the hydraulic fracturing of the rock for the exploration of liquid or gaseous hydrocarbons; that by providing that permits Exclusive of hydrocarbon research are repealed when their holders are not Satisfy the new reporting obligations or have mentioned the use or consideration of drilling followed by hydraulic fracturing of the rock, Article 3 (II) draws the consequences of the new rules introduced by the Legislator for the exploration and exploitation of liquid or gaseous hydrocarbons; that, in so doing, Article 3, paragraph II, does not affect a legally acquired situation;
17. Considering, second, that the mining search authorisations granted in defined perimeters and for a period of time limited by the administrative authority cannot be treated as objects for the holders of a right of Property; that, as a result, the impugned provisions do not result in deprivation of ownership within the meaning of Article 17 of the 1789 Declaration or an infringement contrary to Article 2 of the 1789 Declaration;
With regard to grievances From the lack of knowledge of Articles 5 and 6 of the Environment Charter:
18. Considering that, according to the applicant company, the prohibition of the use of any method of hydraulic fracturing of the rock for the exploration and exploitation of liquid or gaseous hydrocarbon mines by Article 1 of the Law of 13 July 2011 disregards the precautionary principle enshrined in Article 5 of the Environment Charter; that both the prohibition and the repeal of the exclusive permits for the investigation of liquid or gaseous hydrocarbon mines provided for in Article 3 of the Act of 13 July 2011 also disregarded Article 6 of the Charter of The environment, which requires the reconciliation of public policies with the protection and enhancement of the environment, economic development and social progress; and
19. Considering, on the one hand, that under Article 6 of the Charter of the Environment: Public policies must promote sustainable development. To this end, they reconcile the protection and development of the environment, economic development and social progress " ; that this provision does not establish a right or freedom that the Constitution guarantees; that its ignorance cannot in itself be invoked in support of a priority question of constitutionality on the basis of Article 61-1 of the Constitution;
20. Whereas, on the other hand, under Article 5 of the Charter of the Environment: Where damage, although uncertain in the state of scientific knowledge, could seriously and irreversibly affect the environment, the public authorities shall ensure, through the application of the precautionary principle and in Their areas of responsibility, the implementation of risk assessment procedures and the adoption of provisional and proportionate measures in order to prevent the occurrence of damage " ; in any case inoperative the complaint that the permanent ban on the use of any hydraulic fracturing of the rock for the exploration and exploitation of liquid or gaseous hydrocarbon mines would not be known to the Precautionary principle;
21. Considering that it follows from all the foregoing that the provisions of Articles 1 and 3 of the Law of 13 July 2011, which do not disregard any other right or freedom guaranteed by the Constitution, must be declared in conformity with the Constitution,
Decides:
Shall be published in the Official Journal of the French Republic and notified in accordance with the conditions set out inArticle 23-11 of the Order of 7 November 1958.
Issued by the Constitutional Council at its meeting on 10 October 2013, attended by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Nicole BELLOUBET, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Hubert HAENEL and Nicole MAESTRACCI.
Public information on October 11, 2013.
The President,
Jean-Louis Debré
