Several recent court decisions have deal with the legal framework governing derogations from the prohibition against the destruction of protected species (DDPS), considering both the criteria justifying an application for such derogation and the conditions for obtaining it. What are the practical and immediate consequences for renewable energy project developers and operators?
The renewed criteria making the obtention of DDPS mandatory.
The administrative courts have recently decided that, in certain cases, a low residual impact on protected species does not necessarily exempt a project developer from applying for a derogation (regarding bats, see Bordeaux Administrative Court of Appeal, 9 March 2021, 19BX03522; Nancy Administrative Court of Appeal, 26 January 2021, 20NC00876; Nancy Administrative Court of Appeal, 26 January 2021, 20NC00316).
Of particular note is the fact that a DDPS is necessary if :
• “The environmental study classifies the residual impact of the project as nil after implementation of these avoidance and reduction measures” whereas “the planned mitigation measures will make it possible to ‘limit to 90% the risks of mortality due to collisions’” (Nancy Administrative Court of Appeal, 26 January 2021, 20NC00876)
• “After setting up avoidance and reduction measures, the impact study concludes that the ‘residual impacts [are] negligible to low for all groups of species present in the limited study area,’ although the existence of a residual impact cannot be ruled out, particularly the risk of accidental collision, especially for the common pipistrelle that is frequently observed on the site (…)” (Nancy Administrative Court of Appeal, 26 January 2021, 20NC00316)
• The planned measures “ not of a natyre allowing t to prevent all risk for these species” (Bordeaux Administrative Court of Appeal, 9 March 2021, 19BX03522)
However, a more balanced case law should be noted. A court has held that a project did not require a DDPS if “only one red kite and one common crane have been observed in the restricted study area, which is not particularly sensitive for these two species”, taking into account “the location chosen for the wind turbines, which is perpendicular to and outside the main migration corridor for birds of prey, in a site that is not particularly sensitive for this specy” (Nancy Administrative Court of Appeal,26 January 2021, 20NC00876)
Lastly, in its response to a reference for a preliminary ruling by a Swedish court, the CJEU decided that in the case of forestry or land development activities the prohibition against destroying or disturbing protected species does not apply solely when there is a risk of negative impact on the conservation status of the species (CJEU, 4 March 2021, C-473/19 and C-474/19). However, the Court did not specify the criteria for determining the threshold at which a derogation should be requested under these circumstances.
The three conditions the project must meet to obtain a DDPS
In order to obtain a DDPS, a project must meet three concurrent criteria.
– The imperative major public interest justification
To determine whether a project meets an imperative major public interest justification, case law focuses, inter alia, on the project’s contribution, which must be significant, to environmental and promotion of renewable energy public policies, whilist taking into account specific local circumstances, particularly with respect to power generation or the diversification of energy production sources.
The Conseil d’Etat recently decided that a wind power project sited in the Lanouée forest in Brittany met this condition due to the national an European objectives of promoting the production of renewable energy and withregards to the “fragility of Brittany’s electricity supply as a result of low local production, which covered only 8% of the region’s needs, and found that the project was consistent with the objective of the ‘electricity pact’ signed on 14 December 2010 by and between the State, the Brittany region, the Environment and Energy Management Agency (ADEME), the electricity transmission network (RTE) and the National Housing Agency (ANAH), which aims at increasing the production of renewable electricity in this region” (CE, 15 April 2021, No. 430500).
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