The Conseil d’Etat is asked to review a regulatory act that abrogates provisions related to classified facilities for environmental protection and waste disposal (Order n°2005-1129 of 8 September 2005, article 2 I).

The claimants argued that the government was not competent to abrogate provision.

According to the legislation on simplification of the law, the government can adopt by order, measure to abrogate the dispositions of the environmental code on classified facilities and wastes that became obsolete or redundant (Law of 9 December 2004, art.51 3°).

Pursuant to the Environmental Code, the regulatory authority has the responsibility to define the conditions of the environmental impact assessment. A Conseil d’Etat’s decree must define the substance of these conditions (article L122-1 of the Environmental Code).

The provision questioned set up that the environmental impact assessment must contain the conditions to restore storage site when the landfill is phased out. As a result, it must be adopted by the regulatory power. Nonetheless, the dispositions became also redundant with art.3 4° Decree 21 September 1977. Consequently, the government had the possibility to abrogate them.

However, one part of the provisions related on the fact that the environmental impact assessment must contain requirements for reprocessing waste. This provision was the responsibility of the regulatory power and was still relevant. Therefore the government did not have the possibility to abrogate it. The Court ruled that the government could not exceed its competence.  

Consequently the decision is overturned.