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New Regulations For The Development Of Wind Energy In France:

Simplification Or An Added Burden

Fabrice Cassin

Partner

Introduction

- The French government initiated the « Grenelle de l’Environnement », consisting the key ecological and sustainable development policies for the next five years. This is derived from the EU’s climate and energy plan .

- Two Bills called “Grenelle Environment I and II” are in the process of being passed in the Parliament before the end of the year.

Introduction • In accordance with EU’s climate-energy plan, renewable

energy sources should, by 2020, provide 20% of the power used in France. This goal has been increased to 23% by the French government.

• It is widely agreed that reaching such a goal implies extensive development of wind generator plants in France. Global projections show that, the additional wind-generated power that should be available in France within the next five years, should be between 15,000MW and 20,000MW (x 10 compared to 2009)

Introduction

This presentation will focus on the upcoming reforms:

1. New planning for wind energy2. New authorization for wind farms

These reforms that are supposed to simplify the wind farms development system, does not seem to achieve it.

• In recent years, the development of wind energy

projects have been tried to be organized by territorial planning. But those plans were not self executing like the regional schema for wind. Some were never drafted or never executed.

• Only the ZDE regime (wind energy development zone) is efficient because of its incentive aspect : since 14 July 2007, only facilities located within the limits of a ZDE can benefit from the purchasing obligation.

1.New planning for wind energy

1. New planning for wind energy

Objectivea new system is introduced to reach the goals of 20% of renewable energy sources in the final consumption of energy in 11 years.

MeansThe « regional sustainable energy plan » :- defining zones where wind projects will be preferably installed

(article 17 Bill of Grenelle Environment I);- reorganising other local plans such as wind energy development

zones (ZDE).

All plans include the consideration and protection of the environmental interest. French region are leaders.

1. New planning for wind energy

1.1. The « sustainable energy regional plan »

• is an « orientation document » set up by regional authorities• will allow the capacity between different renewable energy sources • will help the reorganization of existing local plans all local plans,

such as ZDE should be compatible with the regional plan.

1. New planning for wind energy

1.1. « sustainable energy regional plan »

The need of a large consensus to the regional plan:

- The Bill provides that the adoption of a regional plan should involve a broad participation : local State administration, local authorities, wind energy companies, green associations, transmission system operators...

- Reform puts emphasis on improving the public access to the project and its environmental impact, notably in order to limit the negative effect on “landscape”

1.1 « sustainable energy regional plan »

The French legal notion of « landscape »

The French law protects natural and cultural landscape and propose two meanings for « landscape »:

- remarquable sites from an artistical, historical, scientific or scenic point of view (law of 13/12/1913 on historical monuments, law of 02/05/1930 on sites protection).

- landscape with significant esthetic or ecological interest (law of 08/01/1993 on landscape’s protection, European landscape Convention of Florence of 20/10/2000)

1. New planning for wind energy

1.2. ZDE’s reform

The Bill of Grenelle Environment provides that the wind energy development zone (ZDE) should be compatible with the regional plan.

- municipalities (communes and etablissements publics de coopération intercommunale) should lead the initiative and propose to the préfets the setting-up of ZDE on their territory.

- Municipalities have a strong incentive to have wind farms in operation in their territory since they generate local tax income in low revenue areas.

- Upon the recommendation of local authorities, the préfets decide to create a ZDE on a site considering different criteria : - the wind farm potential, - the grid connection possibilities,- and the protection of landscapes, historical monuments and remarkable

and protected sites".

1. New planning for wind energy

1.2 ZDE’s reform

• The Bill proposes an enlargement of the last criteria of a ZDE :“ the possibility for the upcoming projects to preserve

surroundings, public security, agriculture, nature and environment protection, protected sites and monuments and archaeological elements”

• It refers to previous landscape criteria and adds a criteria regarding mainly the conservation of wild plants and animals and habitats which are included in the EC directive, Natural habitats 92/43/EEC of 21 May 1992.

1. New planning for wind energy

Map of French departments with a ZDE approved or in progress

A non simplification of the planning system Instead of an in-depth reform of the planning system, what is to be done is not to provide a central role to the “sustainable energy regional plans”, the Bill of Grenelle Environment simply adds it to the existing plans, at a local or regional level.

The risk of the superposition of plans is to hinder the development of wind energy

circulaire du 26 février 2009 sur la planification du développement de l’énergie éolienne terrestre

1. New planning for wind energy

2. New authorization for wind farms

• A new environmental permit• The reform of the building permit

2. New authorization for wind farms

2.1. A future environmental permit for wind farms

• French government aims to subject the wind project installations to environmental permit (Installations classées pour la protection de l’environnement - ICPE) in order to control its operating phase.

• Currently, a wind energy project developer in France should obtain - An operating license delivered by the Ministry of Industry, - A building permit delivered by the préfet,- A grid connection proposal from EDF.

2. New authorization for wind farms

2.1 A future environmental permit for wind farms • After the planned reform, a developer will also have to apply for a

special registration of its installation under the environmental law : the environmental permit.

• The environmental permit delivered by the préfet will contain operating rules on security, sound intensity, disassembly and distance from radars.

• The operating rules could be modified by the préfet during the operating phase, following a change of regulation or an accident (i.e increasing mortality of birds or bats…)

→ it could produce effects on the electric production of the wind farm.

2. New authorization for wind farms

2.1 A future environmental permit for wind farms

• The draft regulation faces a strong opposition from the environment administration, wind energy industry, including FEE and SER. It’s a will of the member of parliement

• Major issues:- Could the power of the préfet to add or modify technical rules and duties

contained in the environmental permit be limited? We don’t think so- What is the maximum period for a third party to initiate a proceeding

against the environmental permit ? The answer could be 4 years

2. New authorization for wind project

2.2. Reform of the building permit

• Further to the Aarhus Convention (25 June 1998), the impact studies the public enquiry procedure, preceding the grant of a building permit or/and the environmental permit, is modified by the Bill on Grenelle Environment II in order to improve public access to information and public participation in decision-making.

2. New authorization for wind projects

2.2 reform of the building permit

• Every large wind farm project will be subject to an environmental impact studies and public enquiry and

• The Bill of Grenelle Environment II provides for an improvement in the publicity of the public enquiry and in the content of the file through the transposition of the article 6.2 d) of the Aarhus Convention: “the public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure and in an adequate, timely and effective manner”.

• The Bill provides that the decision of the préfet should take into account the impact studies, the position of the administration for environmental protection and the results of the public consultation. Project can be different after the instruction. (i.e. transposition of article 6.8 of the Aarhus Convention: “ensure that in the decision, due account is taken of the outcome of the public participation”)

CONCLUSION

• The reforms provided by the Bills of Grenelle Environment surely does not involve a simplification of the legal framework.

• It is not in compliance with to article 6 of the Directive 2001/77 of 27 September 2001 according to which the State should reduce the regulatory and non-regulatory barriers to increase the electricity production from renewable energy sources.

• It is not in compliance to article 12 of the proposition of EC Directive providing that administrative procedure should be « proportionate and necessary ».

35, boulevard des Capucines75002 ParisTél: (33-1) 53 45 40 00Fax: (33-1) 53 45 40 10 www.cgrlegal.eu

New Regulations For The Development Of Wind Energy In France

Simplification Or An Added Burden

Fabrice Cassin

Partner