Article by Michel Prieur
This article discusses, from the point of view of a jurist specializing in environmental law, how French courts might have ruled if confronted with a case similar to the United States Supreme Court's decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. Vermont Yankee represents a blow to an ecologist's hope that the courts might halt the progress of the nuclear program. Particularly damaging was the rigid application of conventional administrative law to nuclear affairs. As long as judges blindly adhere to traditional principles of administrative law, they will frustrate sound environmental policy. Instead, they should impose innovative judicial criteria on administrative rulemaking. This strict adherence to tradition does, however, satisfy conservative and orthodox jurists: traditional principles (in this case, the rules of non-adversarial administrative procedures) remain intact since the courts are careful not to encroach upon administrative powers. Environmental jurists, on the other hand, are disappointed to see the judiciary decline the opportunity to assume new responsibilities. They believe that the courts have failed to realize that the nuclear phenomenon does not fall within the domain of ordinary law, and that the serious health and environmental risks imposed upon our contemporaries and upon future generations justify an increasingly strict application of regulations. Vermont Yankee, in an effort to avoid ruling on the fundamental issues, deemed such basic questions to be within the domain of Congress; that is, the problem was considered a legislative one properly resolved by the Congress rather than by judges who are not empowered to legislate. Courts in France express the same reluctance to decide these difficult issues.
Discussing Vermont Yankee in terms of French law is not a simple task because neither American nuclear regulations nor American administrative procedure share common characteristics with their French counterparts. France, influenced by Cartesian thinking and often portrayed as having a strict legal system, has no laws governing nuclear matters. Instead, texts issued by the government are applied. Moreover, France has no code or law concerning administrative procedure comparable to the American Administrative Procedure Act of 1946. Because French procedural regulations are in great part drawn from case law, the decisions of administrative courts and the Conseil d'Etat are central to French administrative law.
In view of these general considerations, Vermont Yankee can most logically be compared to French law in three major areas. First, the principal regulations concerning the construction of a nuclear power plant and the legal remedies available in France raise serious problems for environmentalists challenging the plant's construction. Protests concerning the construction of nuclear facilities are frequently discouraged by the length and complexity of the existing administrative process. In France, as well as in the United States, the complexity of this process is equaled only by the technological complexity involved in the construction of such plants. The second issue concerns the extent of the judge's authority over complex and technical matters. Although the powers of the administrative judge vary with the type of dispute, the recent trend in French administrative jurisprudence has been to allow the judge a certain degree of discretion. This discretion, however, must operate within the established confines of existing administrative procedures. The final problem concerns the agency's duty to consider "alternatives" to nuclear power plant construction. In France, as of January 1, 1978, as well as in the United States, the construction of each nuclear power plant must be accompanied by a study of its impact upon the environment. Such a requirement raises two issues: whether the study must include a discussion of alternatives; and whether the administrative judge has adequate power to ensure that the proscribed procedures for compiling the impact study were, in fact, followed.
About the Author
Michel Prieur. Professor, la Faculte de Droit de Strasbourg; President of the Societe Francaise pour le droit de l'environnement.
Citation
55 Tul. L. Rev. 465 (1981)