Cigéo and the Rights of Future Generations: The French Constitutional Council Gives Its Green Light

The French Constitutional Council has addressed a priority question of constitutionality (QPC) raised by nuclear opponents regarding Cigéo, France’s geological storage project for the most radioactive waste. The Council has ruled that the project conforms to the French Constitution and respects the rights of future generations.

On October 27, 2023, the French Constitutional Council issued a highly expected decision on a priority question of constitutionality (QPC) referred to by the French Council of State last August. This was in the context of an appeal to annul the decree of public utility declaration (DUP) of Cigéo, filed in September 2022 by several French associations and individuals. This question concerned the constitutionality of Article L. 542-10-1 of the French Environmental Code, as amended by the July 25, 2016 law. This law specifies the modalities for creating a reversible storage facility in deep geological layers for France’s high and medium-activity long-lived radioactive waste.

What Does the French Environmental Code Say?

It is worth recalling that the French law of June 28, 2006, on the sustainable management of radioactive materials and waste, defined “reversible storage in deep geological layers” as a long-term solution for managing high or medium-activity long-lived (HA and MA-VL) radioactive waste. This followed 15 years of research initiated by the previous French law of December 30, 1991, and its evaluation by the French Nuclear Safety Authority (ASN). This law subjected such storage to a “principle of reversibility” but had not defined it.

After an initial parliamentary failure, it was finally the French law of July 25, 2016, following a public debate held in 2013, which defined reversibility in a revised draft of Article L. 542-10-1 of the French Environmental Code. Reversibility is “the capacity for successive generations to either continue the construction and operation of successive sections of this storage or to reassess the choices previously made and evolve the management solutions.” The same Article specifies that the minimum reversibility period, to be set by the creation authorization of the facility (granted by law), cannot be less than 100 years. This implies that reversibility in France will no longer be possible beyond this period, and the storage center will be permanently closed. The text also sets out the conditions and procedures for creating this special basic nuclear facility in France.

What Did the Claimants Demand?

The claimants criticized the aforementioned Article for not guaranteeing the reversibility of the storage beyond the minimum period of 100 years within France. They argued that this obstructed the possibility for future generations in France to reconsider this choice, which could irreparably harm the French environment, particularly water resources, and compromise their ability to meet their needs. They believed this would violate the right of future generations in France to live in a balanced environment respectful of health, protected by the French Environmental Charter and the principles of solidarity and fraternity between generations, which they asked the French Constitutional Council to recognize.

The Council did not directly respond to the claimants’ request to recognize these principles. It analyzed the contested Article of the French Environmental Code in light of the French Environmental Charter, which has constitutional value. This analysis suggests a certain form of recognition of intergenerational fraternity within France.

What Does the Charter Say, and What Conclusions Does the French Constitutional Council Draw?

Article 1 of the French Charter states, “Everyone has the right to live in a balanced and health-respectful environment,” and the seventh paragraph of its preamble imposes, “To ensure sustainable development, the choices made to meet the needs of the present must not compromise the ability of future generations and other peoples to satisfy their needs.”

According to the French Constitutional Council, these two provisions imply that the French legislature can impose limitations on the right to live in a balanced and health-respectful environment, but these must be linked to constitutional requirements or justified by a general motive and proportionate to the objective pursued.

How Does the Council Analyze the Provisions of the French Environmental Code Governing Cigéo?

Firstly, the Council considers that while the storage of HA and MA-VL waste in an underground facility may cause serious and lasting harm to the environment and health due to the dangerous nature of these wastes, it is evident from the preparatory work of the French law that the legislator intended these wastes to be stored in conditions that protect the environment and health and not to burden future generations alone.

Furthermore, the Council believes it is not its role to investigate whether the legislator’s objectives for long-term waste management could have been achieved by other means, as long as the methods chosen by the French law are not, given the current state of scientific and technical knowledge, manifestly inappropriate for these objectives.

Secondly, the Council considers that Article L. 542-10-1 surrounds the creation and operation of the storage center with various guarantees to ensure the respect of health, safety, and environmental protection requirements and to limit the burdens borne by future generations in France. These guarantees include:

  • Implementation of reversibility through progressive construction, adaptable design, and flexible storage operation, including the possibility to retrieve already stored waste packages.
  • Creation of the storage subject to a specific authorization procedure in France (preliminary studies conducted by an underground laboratory, authorization request preceded by a public debate, a report from the National Evaluation Commission, and an opinion from the ASN and local authorities, then transmitted to the French Parliamentary Office for Scientific and Technological Assessment (OPECST) for evaluation and reporting to the competent parliamentary commissions).
  • Authorization of operation limited to a pilot phase.
  • Closure of the storage after the reversibility period, authorized by French law.
  • Modalities for citizen participation in France.

The French Constitutional Council concludes that the contested provisions do not violate the requirements of the French Environmental Charter or any other right or freedom guaranteed by the French Constitution.

In Conclusion

From this analysis in light of French constitutional law, it is practical to remember that:

  1. The deep geological layer storage principle of HA and MA-VL waste is deemed constitutional in France.
  2. The legal conditions for creating and operating such a nuclear facility are considered to protect the health of current and future generations and the environment in the long term and offer future generations in France the guarantee of choice, at least during the entire reversibility period. ■

By Marc Léger, Chairman of the Law and Insurance Section of the French Nuclear Energy Society (Sfen)

Photo: Andra’s underground laboratory in Aubr – ©Andra