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Coastal Adaptation to Climate Change in French Law

which integration of climate change in integrated coastal zone management?

Betty Queffelec UMR-AMURE September 2010

Coastal Adaptation to Climate Change in French Law which integration of climate change in integrated coastal zone management?
Betty Queffelec UMR-AMURE September 2010

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Acknowledgements
I would like to thank the entire team at SIAGM and Manuelle Philippe (University of Brest) for their support in the development of this work as well as all those whom I met and who accepted to share their knowledge with me to enable me to best implement this study. This study was conducted within the framework of the project IMCORE: Innovative Management for Europe’s Changing Coastal Resource, funded by the Interreg IVB programme.

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Contents
Acknowledgements..........................................................................................................................2 Contents...........................................................................................................................................3 List of acronyms and abbreviations.................................................................................................4 Introduction......................................................................................................................................6 1. National action in terms of climate change adaptation................................................................8 1.1. Coordination of national action in terms of climate change adaptation...............................8 1.1.1. Institutional framework...............................................................................................8 1.1.2. The 2004 Climate Plan................................................................................................9 1.1.3. The 2006 Climate Plan................................................................................................9 1.1.4. The national climate change adaptation strategy – November 2006.........................10 1.1.5. The national climate change adaptation plan............................................................11 1.2. Gradual integration of climate change adaptation in French national law.........................12 1.2.1. A few rare examples of sectoral integration of climate concerns..............................12 1.2.2. The Grenelle process ................................................................................................12 2. Climate change adaptation on a local scale...............................................................................17 2.1. Management of shoreline risks accentuated by climate change: mainly national-level competence................................................................................................................................17 2.1.1. Natural risk planning.................................................................................................17 2.1.2. Prevention strategies against the impacts of climate change in coastal areas...........21 2.2. The place of local authorities in climate change adaptation..............................................29 2.2.1. Climate change adaptation planning.........................................................................29 2.2.2. A myriad of skills available for climate change adaptation.......................................31 2.3. Development of integrated coastal zone management comprising climate change...........47 2.3.1. Local pilot experiments: knowledge development....................................................47 2.3.2. Development of local action in terms of climate change..........................................49 Conclusion.....................................................................................................................................53 Table of contents............................................................................................................................56 Bibliography..................................................................................................................................58 Appendices: ..................................................................................................................................61 Appendix I: Details on the transfer of sea ports, civil airfields, navigable waterways and inland ports................................................................................................................................62 Appendix II: Grenelle commitments towards climate change adaptation................................63

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List of acronyms and abbreviations
ADEME AFITF AJDA Ass ATEnEE BJDU CAA CE CG3P CGCT CO2 COPRNM CPER CRDD CPMR DDE DGF Agence de l'Environnement et de la Maîtrise de l'Énergie Agence pour le financement des infrastructures de transport de France Actualité Juridique Droit Administratif Environment and Energy Management Agency French agency for the funding of transport infrastructures French review on law and administration

Assemblée Assembly Actions Territoriales pour l'Environnement Territorial Actions for the Environment et l'Efficacité Energétique and Energy Efficiency Bulletin de jurisprudence de droit de Urban planning case law bulletin l'urbanisme Cour administrative d'appel Administrative court of appeal Conseil d'Etat Council of State Code général de la propriété des personnes General Code of Public Entity Properties publiques Code Général des Collectivités General Code of Local Authorities Territoriales Carbon dioxide Conseil d’orientation pour la prévention Strategic council for major natural risk des risques naturels majeurs prevention Contrats de projets Etat/région State/region project contracts Centre de Ressource sur le Sustainable Development Resource Développement durable Centre Conference of Peripheral and Maritime Regions of Europe Direction Départementale de l'Equipement Departmental Equipment Directorate

Dotation globale de fonctionnement General operating grant Document d'information communal sur les Community information document on Dicrim risques majeurs major risks DMF Droit maritime français French maritime law DPM Domaine public maritime Public maritime domain DPU Droit de préemption urbain Urban pre-emption right DTA Directive territoriale d'aménagement Land planning directive Etablissement public de coopération Public establishment of intercommunal EPCI intercommunale cooperation GASPAR Database on natural and technological risks GHG Greenhouse gas ICZM Integrated Coastal Zone Management JORF Journal officiel de la République Française Official Journal of the French Republic LOTI Loi d'orientation des transports intérieurs Law on domestic transport Ministère de l'Ecologie, de l'Energie, du Ministry of Ecology, Energy, Sustainable Développement durable et de la Mer en Development and the Sea in charge of MEEDDAT charge des Technologies vertes et des Green Technologies and Climate Négociations sur le Climat negotiations 4/64

Ministère de l’Écologie, de l’Énergie, du Développement durable et de la Mer Mission interministérielle de l'effet de MIES serre NA Future urbanisation area NGO Non-Governmental Organisation Observatoire national sur les effets du ONERC réchauffement climatique Projet d'aménagement et de PADD développement durable PLU Plan local d'urbanisme PNR Parc Naturel Régional POS Plan d'occupation des sols PPR Plans de prévention des risques PPRN Plans de prévention des risques naturels RAC France Réseau Action Climat France MEEDDM

Ministry of Ecology, Energy, Sustainable Development and the Sea Interministerial Mission on the Greenhouse Effect

National Observatory on the effects of global warming Land use planning and sustainable development project Local urban plan Regional Nature Park Land use plan Risk prevention plan Natural risk prevention plan French climate action network Compendium of rulings of the Council of rec. Recueil des arrêts du Conseil d'Etat State req. Requête Motion Réseau d'agences régionales à l'énergie et Network of regional energy and réseau RARE l'environnement environment agencies Schéma d'aménagement et de gestion des SAGE Water planning and management scheme eaux SCOT Schéma de cohérence territoriale Territorial coherence scheme Schéma directeur d'aménagement et de Water planning and management master SDAGE gestion des eaux plan Syndicat Intercommunal d'Aménagement Intercommunal planning union for the SIAGM du Golfe du Morbihan Gulf of Morbihan SMVM Schéma de mise en valeur de la mer Sea enhancement scheme Schémas régionaux d'aménagement et de Regional land planning and development SRADT développement du territoire schemes Villes, territoires et changements ViTeCC Cities, territories and climate change climatiques

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Introduction
Despite increasingly accurate scientific knowledge, many uncertainties remain over climate change, if not over the very existence of the phenomenon, at least over its extent and its local manifestations. However, scientists are urging local authorities to take rapid action in order to obtain the long term results hoped for. Possible measures consist of reducing greenhouse gas (GHG) emissions and adapting to the effects of climate change. The latter measures, which require their authors to look ahead, to anticipate the risks and evolutions in a highly uncertain context, are of particular interest to us. Climate change is not simply a newly emerging sectoral aspect that must be taken into account in public policy. Rather it is the evolution of our environment, which requires us to plan an adaptation strategy and response measures to this phenomenon, and hence full integration of this issue in all areas of public policy. Energy, transport, environmental protection, housing, land planning, tourism... are just some of the fields that must be recast to take into account this evolution with a strong foresight aspect combined with a high degree of uncertainty. Climate change can therefore be seen as an opportunity to test the integration of sector policies. Successful revision of priorities in a context marked by a high risk factor and a high degree of uncertainty should attest to effective Integrated Coastal Zone Management (ICZM). It is therefore a major challenge for ICZM. The Gulf of Morbihan is on the south-east coast of Brittany, France. This area is characterised by the presence of intensive, diversified human activity (shellfish harvesting, agriculture, sailing, tourism…) alongside remarkably rich biodiversity and landscapes. As a coastal area, it is subject to specific concerns, such as erosion and the risk of coastal flooding, which are accentuated by climate change. Local authorities have gradually taken up the question of climate change. They are beginning to introduce it into different texts. For the region of Brittany, climate change figures in the Agenda 21 1, the Energy Plan for Brittany2 and the Charter of Breton Coastal Areas3. In the local area, plans for the creation of a regional nature park have incorporated both greenhouse gas emission reduction and adaptation measures. This project is being developed by a group of communes: the Intercommunal planning union for the Gulf of Morbihan (SIAGM)4. Through the example of the Gulf of Morbihan and Brittany, it is clear that the emergence of this new concern has led local authorities to organise their action in terms of climate change according to their skills and the specificities of their local area (II). This evolution is part of a national framework within which the question of adaptation to change is emerging (I).

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Available at the following address: http://agenda21.region-bretagne.fr/ Available at the following address: http://www.bretagne.fr/internet/jcms/preprod_27223/plan-energie-bretagne Available at the following address: http://www.labretagneetlamer.fr/ In association with the region of Brittany which legally initiated its elaboration, article L. 333-1 paragraph 3 of the Environmental Code.

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1. National action in terms of climate change adaptation
From 2001, French law stated that “Response to the intensification of the greenhouse effect and the prevention of risks related to global warming are recognised as a national priority” 5. The integration of the practical consequences of this assertion was then gradual (1.2). Particular attention will be paid here to the coordination of this action (1.1).

1.1. Coordination of national action in terms of climate change adaptation
Four documents were successively issued to coordinate French action in terms of climate change: the 2004 Climate Plan, its 2006 update, the National Climate Change Adaptation Strategy (2007) and the future Action Plan, currently under development. 1.1.1. Institutional framework In 1992, an Interministerial Mission on the Greenhouse Effect (MIES) was created and placed under the authority of the Ministry of the Environment6. Its role is to “lead, coordinate and organise, in collaboration with associations and economic and social partners, the preparation and implementation of the domestic aspects of the action programme to combat the greenhouse effect; it also assists the Ministry of Foreign Affairs in its international negotiations relating to the greenhouse effect. The work of this mission focuses in particular on: the study of the mechanisms and consequences of the greenhouse effect; the assessment of greenhouse gas emissions; the technical and economic study of preventative measures; monitoring of the application of Government decisions7. From 1992, work on adaptation to climate change was therefore envisaged8. The MIES was then dissolved9. Its responsibilities were taken over and extended by the Directorate General of Energy and Climate under the Ministry of Ecology, Energy, Sustainable Development and the Sea, in charge of Green Technologies and Climate Negotiations (MEEDDAT) which “coordinates, (…), the preparation and implementation of the French climate change prevention and adaptation programme”. This Directorate General comprises a climate energy efficiency department which “develops and implements policy on response to climate change and atmospheric pollution”. Through this policy, it conducted the technical and economic study of preventative measures and monitored the application of Government decisions10.
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Article 1° of Law n° 2001-153 of 19 February 2001 which ranks response to the greenhouse effect and the prevention of global warming risks as national priorities and creating a National Observatory on the effects of climate change in mainland France and French overseas territories, JORF n°43 of 20 February 2001 page 2783.

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Art. 1° Order no 92-528 of 16 June 1992 creating the Interminsterial Mission on the Greenhouse Effect, JORF n°139 of 17 June 1992 page 7905. Art. 2° Order no 92-528 of 16 June 1992 creating the Interministerial Mission on the Greenhouse Effect, op. cit. Bold emphasis ours. Its role was slightly altered by the Order 95-633 of 6 May 1995 art. 2 JO 7 May 1995, “The interministerial mission on the greenhouse effect is charged with ensuring, coordinating and organising, in collaboration with associations and economic and social partners, the preparation and implementation of the French climate change prevention programme. It prepares the positions to be defended in international negotiations and assists the Ministry of Foreign Affairs in conducting these negotiations. It takes part in the technical expert group addressing this subject at community and international level (…)”. By the abrogation of the Order mandating its creation by the Order n° 2008-680 of 9 July 2008 on the organisation of the central administration of the Ministry of Ecology, Energy, Sustainable Development and Land Planning. Art. 4 of Order n° 2008-680 of 9 July 2008 on the organisation of the central administration of the Ministry of Ecology, Energy, Sustainable Development and Planning, op. cit.

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Meanwhile, in 2001, the National Observatory on the effects of global warming in mainland France and French overseas territories, better known by its acronym ONERC, was created 11. By law, the ONERC was charged with “collecting and distributing information, studies and research on the risks related to global warming and extreme weather events in mainland France and French overseas territories, in collaboration with the relevant research establishments and institutes and the Intergovernmental Expert Group on Climate Change”. “It may implement any information actions within its field of competence among public and local authorities” and issues an annual information report to the Prime Minister and Parliament which may include recommendations on the prevention and adaptation measures liable to reduce risks induced by global warming. In 2009, the Regional Directorates for the Environment, Land Planning and Housing were created12. These decentralised State services are in charge of “developing and implementing State policies in terms of the environment, sustainable development and planning, in particular in the fields of climate change prevention and adaptation, (…) [and] management and protection of the shoreline and marine environments (…)”13. 1.1.2. The 2004 Climate Plan The main target of France’s first Climate Plan14, presented in 2004, was the reduction in greenhouse gas emissions. It “brings together measures in all sectors of the economy and the daily lives of the French population, with a view to saving 54 million tonnes of CO 2 equivalent per year by 2010” 15. Adaptation was not however entirely absent from this plan. It presented eight key aspects (a national campaign on climate change and adaptation; sustainable transport; construction and ecohousing; industry, energy and waste; sustainable agriculture and forestry; sustainable air conditioning; territorial climate plans and the exemplary State; research, international dimension and foresight after 2010), in addition to five key actions (in terms of biofuels; eco-housing: enhanced tax credit; energy labels; CO2 bonus/malus system; sustainable air conditioning). The first of the eight aspects addressed the question of adaptation while acknowledging the fact that it was in its early stages. The plan anticipated the definition of a strategy in 2004, to which the actions presented in the plan contribute, followed by an adaptation programme in 2005. The schedule proved to be somewhat longer. The plan however provided for a number of adaptation measures. Climate evolution scenarios were to be produced for the current century16. They were to be put forward by ONERC, in collaboration with the Commissariat Général du Plan (French planning office), Météo France and climate research organisations17. The plan also provides for an inventory and assessment of critical situation management procedures with respect to the climate scenarios liable to occur (and the possible creation of new procedures). It proposes the launch of a specific assessment plan of the current situation and requirements in the field of adaptation of housing to intense heat. It plans to establish vulnerability indicators and critical thresholds for different human activities. It promotes the introduction of territorial adaptation plans and proposes the organisation of a symposium on strategies. This plan was updated in 2006. 1.1.3. The 2006 Climate Plan In terms of adaptation, this update to the Climate Plan has four main aims: to protect people and property by working towards public health and safety; to take into account social aspects and
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Law n° 2001-153 of 19 February 2001, codified in article L.229-2s of the Environmental Code. Order n° 2009-235 of 27 February 2009, on the organisation and role of regional environment, land planning and housing directorates, JO 28 February 2009. Art. 2 Order n° 2009-235 of 27 February 2009. MEDD "Plan climat 2004 – face au changement climatique agissons ensemble", 2004, 88p. Available at the following address: http://www.developpement-durable.gouv.fr/Les-plans-climat-2004-et-2006.html. Ibid. 2004 p. 4 Ibid. p.18 Ibid. p. 24.

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prevent unequal risk exposure; to reduce costs and draw upon advantages; to preserve natural heritage18. It makes reference to the national adaptation strategy established by ONERC and specifies that it will be implemented in an action plan to be drafted by the Government by mid2007. This update also emphasises Government action in terms of drought and flood prevention and the protection of vulnerable populations in the event of a heat wave. It presents suggestions for future work: improvement of knowledge and monitoring of impacts of climate change; involvement of local authorities in the adaptation plan; training and awareness-raising; climate change impact cost assessment by an interministerial working group19. 1.1.4. The national climate change adaptation strategy – November 2006 The French national climate change adaptation strategy was established by ONERC and approved by the interministerial sustainable development committee on 13 November 200620. It was conceived as an intermediate stage between the diagnosis made by scientists and the implementation of an action plan21. The strategy incorporates the four aims outlined in the 2006 update of the Climate Plan. It is then broken down into nine strategic goals: to develop knowledge; to consolidate the observation system; to inform, train and raise awareness among all players; to promote a territorial approach; to fund adaptation actions; to use legislative and regulatory instruments; to promote voluntary approaches and dialogue with private players; to take into account the specificity of overseas French territories; to contribute to international exchanges. These strategic goals are approached from different angles: a transversal approach (water, risk prevention, health, biodiversity), a sector-based approach (agriculture, energy and industry, transport, construction and housing, tourism, banking and insurance) and an environment-based approach (city; sea and coast; mountains, forest). Each of these 23 points is illustrated with one or more recommendations, of which there are 43 in total. Based on the principle of subsidiarity, the strategy considers that local authorities should play an important role in the national adaptation policy as they are the first to suffer from the impacts of climate change and are best placed to appreciate the territorial specificities of such phenomena. The various territorial ranks should therefore be mobilised. “State-Region Planning Contracts should incorporate the need for territories to adapt to the effects of global warming” (recommendation 13). The strategy then considers that “to induce mobilisation, the development of regionalised studies and assessments will be promoted by the creation of regional structures or centres, which could be led by specific observatories, contributing to the ONERC network. The implementation of these studies and of corresponding structures constitutes a first step towards the emergence of an appropriate governance system which associates State services with local authorities and opens up to civil society according to the circumstances at a given time and place. Such an approach should help local authorities, through this framework, to establish their own adaptation strategies. It is also indispensable, by this means or another, to promote the consideration of the question of climate change adaptation in all territorial planning documents on whatever geographical level and in whatever sector (we can quote for instance SCOT, PADD, DTA, SDAGE, SAGE, PLU22, etc.), as well as in all other voluntary instruments (Agenda 21, ATEnEE contract23, Territorial Climate Plan, etc.)” (recommendation 14). The strategy
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Prime Minister "Face au changement climatique, agissons ensemble - Actualisation 2006 du Plan Climat 20042012", November 2006, 70p. Ibid. p. 23, bold emphasis ours. National climate change adaptation strategy – November 2006, available at the following address: http://www.developpement-durable.gouv.fr/La-strategie-nationale-d,14477.html Ibid. p.9 Territorial coherence scheme (SCOT), land use planning and sustainable development project (PADD), land planning directive (DTA), water planning and management master plan (SDAGE), water planning and management scheme (SAGE), local urban plan (PLU). Territorial Actions for the Environment and Energy Efficiency.

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finally specifies that a territorial approach should be applied at an appropriate geographical level and could justify joint transboundary approaches24. In terms of risks, the strategy states that: “The probabilities of the occurrence of extreme events, as well as of their consequences, such as the flood return period, should possibly be recalculated according to progress in climate knowledge and risk maps updated through Risk Prevention Plans (PPR)”. It emphasises the need for an “inventory of ‘essential structures’ presenting their vulnerability, and the need to identify these vulnerabilities. This refers to structures that are in essence of public interest, whose dysfunction could cause major disorganisation: the French still recall the power cuts caused by the storms in 1999 and disturbance to the rail network during the 2003 heat wave”. Finally, it promotes the development of a “risk culture” and the consolidation of European cooperation in this field (recommendation 26)25. Three recommendations focus specifically on the shoreline. The first concerns strategic retreat which “requires to be carefully studied and planned” (recommendation 39). The second recommendation focuses once again on urbanisation control in the face of risks generated by climate change: “Shoreline PPRs [risk prevention plans] should be drawn upon where they exist. It is also possible to use existing regulations, such as the Coastal Law, which should be better applied (legality controls on PLU for instance [see below]), or even reinforced (extension of no build areas for instance [see below]). Communication on climate change could also help local authorities to take public interest obligations into account in their choice of development (SDAT, SCOT, SMVM26, PADD) or urbanisation (PLU) of the coastal area” (recommendation 40). This recommendation echoes recommendation 14 (see above). Finally, given the vast range of expected impacts on the marine ecosystem, and consequently on related activities such as fisheries, the strategy states that “On an international scale, participation in networks such as the Conference of Peripheral and Maritime Regions of Europe (CPMR) will enable feedback to be drawn from foreign experiences” (recommendation 41)27. The text of this strategy closes with the following consideration: the implementation of these recommendations should be coordinated through a full fledged national adaptation plan. We find here the call for an action programme in the 2004 Climate Plan which became the action plan in the 2006 update. 1.1.5. The national climate change adaptation plan ONERC’s request was heard and incorporated in the Grenelle I Law: “A national climate change adaptation plan for the different sectors of activity will be prepared by 2011” 28. When ONERC submitted its 2009 report to Environment Minister Jean-Louis Borloo on 5 November 2009, it was announced that the drafting of the national adaptation plan would begin in the coming weeks. Expert groups met between January and June 2010 and produced a report together with many recommendations29. The major threat of climate change on low-lying coasts30 was clearly emphasised by experts, who recommended enhanced risk prevention. They specify the need to “take into account, from now on, adaptation to the impacts of climate change in the reconstruction, repair and upgrading of structures” as well as to study the “options of strategic recession and restoration of natural functioning as alternatives to coastline maintenance by protective
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National climate change adaptation strategy, op. cit., p. 40-41. Ibid. p. 55-56. Sea Enhancement Scheme. National climate change adaptation strategy, op. cit., p.76-78. Article 42 last paragraph of the Law n° 2009-967 of 3 August 2009 on the implementation of the Grenelle Environment Round Table, JORF n°0179 of 5 August 2009 page 13031. Verges, P. (Coord.) "Plan Adaptation Climat - Rapport des groupes de travail de la concertation nationale", 30 June, 163p. Available at the following address: http://www.developpement-durable.gouv.fr/IMG/pdf/Onercrapport_concertation_adaptation_30_06_2010.pdf Ibid. p. 48.

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structures”31. A national consultation was organised to gather the public’s comments and proposals on these recommendations. A consultation form is available online 32. Furthermore, public meetings should be organised by the Prefects across France.

1.2. Gradual integration of climate change adaptation in French national law
Before the Grenelle Environment Round Table (1.2.2), outside of the institutional framework (see above), provisions towards the integration of adaptation to climate change remained few and far between in French law (1.2.1). 1.2.1. A few rare examples of sectoral integration of climate concerns The French Water Law constitutes a noteworthy exception to the general lack of consideration for climate concerns in sectoral legislation. The objective of balanced, sustainable management of water resources “takes into account the necessary adaptations to climate change (...)” 33. The reference to climate change was introduced by the 2006 Water Law34. However, in the implementation of the water law at local level, the inclusion of climate change adaptation varies considerably from one area to another. In the SDAGE Loire-Bretagne, adopted in 2009, minimal provisions were made for climate change adaptation (water impoundments were considered)35. On the other hand, the SDAGE Rhône Méditerranée 2010-2015 largely takes this issue into account36. The same year, the State-Region Planning Contracts evolved to become State-Region Project Contracts. “The territorial constituent has been integrated in the project contracts. The projects under the territorial constituent should fulfil the same general aims as the major projects yet should also comply with six specific themes specified by the above-mentioned Prime Minister’s circular of 6th March 2006”. One of these six themes is as follows: “territorial climate change adaptation strategies by the promotion of renewable energies and energy demand management” 37. Yet it is within the framework of the so-called “Grenelle” consultation processes that the question of the integration of climate change in French legislation will truly emerge. 1.2.2. The Grenelle process The Grenelle process involved a major consultation programme on different subjects in a bid to improve legislation and the related public policies. The first consultation focused on the environment. It began in 2007. This was followed by a Grenelle Oceans Round Table in 2009. Through these two events, the question of climate change, including adaptation, proved to be a key political issue. The framework of the Grenelle process will first be presented (1.2.2.1), before discussing the political commitments to which it led (1.2.2.1) and the adoption of laws on their application (1.2.2.2). 1.2.2.1. The Grenelle process framework The Grenelle processes were conducted according to a common framework. This was based on five “colleges”: local authorities, non-governmental organisations (NGO), professionals, trade unions and the State.
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Ibid. p. 56. Form available at the following address: http://consultations-publiques.developpement-durable.gouv.fr/index.php? sid=75225&lang=fr Art. 211-1 I of the Environmental Code. Article 20 of the Law 2006-1772 of 30 December 2006 on water and aquatic environments, JORF n°303 of 20285 December 2006 page 20285, text n° 3 SDAGE Loire-Bretagne p. 70 See the relevant sheet in the database: http://www.imcore.eu/tagazan/ Jean-Marie Pontier, "Des CPER aux CPER : les contrats de projet 2007-2013" AJDA 2008 p. 1653

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Four phases can be distinguished. A period of discussions by thematic work groups during which different people belonging to each of the above-mentioned colleges were invited to a brainstorming session on the question in hand. For instance, during the Grenelle Environment Round Table, a working group was set up on the question of response to climate change and energy demand management. The discussion was then opened up to all citizens. Public meetings were organised to this end, and a website was set up. Negotiations were then organised at round tables gathering the representatives of the five abovementioned colleges. They were to result in written commitments. 265 commitments were formulated during this phase of the Grenelle Environment Round Table 38; 138 commitments were laid out in a Blue Book entitled “Commitments of the Oceans Round Table”39. The process is completed by an operational phase that aims to apply the commitments via “operational committees” working on each of the projects. One of the Grenelle Environment projects targets integrated sea-shoreline management40. Following this process, two laws41 were adopted: • Law n°2009-967 of 3 August 2009 on the implementation of the Grenelle Environment Round Table (known as “Grenelle I”) was adopted on 3 August 200942. This first, rather nonnormative text primarily presents the main objectives.

• Law n°2010-788 of 12 July 2010 on national commitment to the environment (known as “Grenelle II”) was adopted on 29 June 201043. It contains concrete measures for the implementation of the Grenelle Environment Round Table commitments. A draft blue book was also presented by the Government in mid-November 2009. It drew upon the work of the Grenelle Oceans Round Table to define a maritime policy for France44. 1.2.2.2. Commitments towards climate change adaptation Several commitments have been made towards climate change adaptation45. The commitments made through the Grenelle Environment Round Table are: the training of construction professionals in climate change adaptation46; the establishment of a national climate change adaptation plan (which could be the basis for territorial climate-energy plans) 47; the introduction of a blue belt and green belt (ecological corridors whose presence could prove critical for the adaptation of species and ecosystems to climate change)48; and above all the evolution of the legislative framework enabling local authorities to play a major role in this field 49. This final commitment includes the introduction of climate change adaptation and energy management in land planning objectives; an incentive towards global urban planning, incorporating transport, housing, public areas and trade; the generalisation of SCOTs (territorial coherence schemes) in sensitive areas and the reinforcement of their binding nature; the generalisation of territorial climate-energy plans by making them
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The Grenelle Environment Round Table commitments are available at the following address: http://www.legrenelleenvironnement.fr/grenelle-environnement/IMG/pdf/tables_rondes_web_engagements.pdf This document is available at the following address: http://www.legrenellemer.gouv.fr/IMG/pdf/LIVRE_BLEU_Grenelle_Mer.pdf http://www.legrenelle-environnement.gouv.fr/spip.php?rubrique141 The 2009 Finance Law and the 2008 Amended Finance Law also contributed to the implementation of the Grenelle commitments. JORF n°179 of 5 August 2009 p. 13031. JORF n°0160 of 13 July 2010 p. 12905. http://www.sgmer.gouv.fr./IMG/pdf/Projet_de_Livre_Bleu.pdf See Appendix II. Commitment n°11. Commitment n°71. Commitment n°73. Commitment n°50.

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mandatory and coordinating them with urban planning documents; concrete prevention measures against urban sprawl. The final round table of the Grenelle Oceans Round Table was held on 10 July 2009. Adaptation was substantially represented, especially from a point of view of risks. Here climate change adaptation takes on a more concrete dimension, responding to a pressing need relating to public health. The aim is to systematically consider natural risks (tsunamis…), sea level rise and other effects of climate change in land planning policies and adapt planning accordingly, so as to reduce populations’ and territories’ vulnerability50. The document specifies the need to incorporate these questions in the short term in urban planning documents and authorisations, and to develop the corresponding part of the “Grenelle II” bill. The commitments also include the improvement of curative action planning to facilitate the return to normal following a major climate event; the establishment of retreat plans on pilot sites in the case of flooding; the inventory and set-up of monitoring of critical points in terms of short term threats (altimetry, erosion, structure condition…) 51 ; the development of a national coastline management methodology and strategy for strategic retreat and defence against the sea52; urban and architectural innovation on the shoreline, to restrict urban sprawl and allow climate change adaptation 53; the reinforcement of information on the risks related to climate change resulting in the development of a risk culture 54; the development of knowledge and organisation of discussions on risk prevention so as to construct joint support tools for French overseas territories and develop the sharing and exchange of experiences within maritime basins and between basins55. These commitments appear to be formulated as an alert, to which a response should be made in awareness of the state of urgency. However, while certain elements of the Grenelle Laws fulfil the commitments established, others remain underdeveloped. 1.2.2.3. The Grenelle Laws on climate change Following an initial planning law known as Grenelle I, more concrete provisions were adopted within the framework of the Grenelle II Law. 1.2.2.3.1. Grenelle I Law The Grenelle Environment Round Table planning law, known as the Grenelle I Law, was adopted on 3 August 200956. As a planning law, its aim was to establish a general framework that would subsequently be presented in detail, in particular through the Grenelle II Law. This text includes several provisions which reiterate the Grenelle commitments towards climate change adaptation. In terms of the training of construction professions, energy efficiency is addressed in article 6, paragraph 1. However, contrary to the terms of commitment n°11, no reference is made to climate change. Nevertheless, in addition to its implications in terms of the reduction of greenhouse gas emissions, this article essentially allows for climate change adaptation from the point of view of the thermal adaptation of buildings. In terms of environmental law, blue and green belts, designed as a land planning instrument to create territorial continuity, should be created by 201257.
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Commitment n°74d. Commitment n° 74e. Commitment n°74f. Commitment n°75a. Commitment n°109. Commitment n°129. Law n° 2009-967 of 3 August 2009 on the implementation of the Grenelle Environment Round Table, JORF n°0179 of 5 August 2009 page 13031. Art. 23 (extract) of the Grenelle I Law.

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In terms of urban planning, the law incorporates climate change adaptation as well as climate change prevention among the “general land use principles”58 in article L.110 of the Urban Planning Code: the action of public authorities “in terms of urban planning contributes to climate change prevention and adaptation to such change”59. The flagship measure, however, remains to be the territorial climate-energy plans among local authorities and their associations of over 50,000 inhabitants. While these plans were simply recommended in the Grenelle I Law, they became mandatory through the Grenelle II Law 60 (see below). These provisions remain rather vague, which can be explained by the law’s programmatic nature, its aim being to define the guiding principles. The Grenelle II Law specifies how these principles will be implemented. 1.2.2.3.1. Grenelle II Law The Grenelle II Law on national commitment to the environment and was promulgated on 13 July 201061. It comprises the question of climate change adaptation from various angles. Regional climate, air and energy schemes determine “the guiding principles promoting the attenuation of the effects of climate change and adaptation to such change”62 (see below). Ecological corridors, whose introduction should facilitate the conservation of biodiversity in the context of climate change, are to be established as well as ecological coherence schemes which shall be incorporated in the master plan63. Article 75 introduces section 4 to Chapter IX of title II of book II entitled: “Assessment of greenhouse gas emissions and territorial climate plan”. Local authorities for communities of over 50,000 inhabitants must establish an assessment of their greenhouse gas emissions by the 1st January 2011 and a territorial climate-energy plan by the 31 December 2012. This plan should contain “The local authority’s strategic and operational objectives in order to attenuate and effectively respond to global warming and adapt to its consequences”. It must be compatible with the regional climate, air and energy scheme64 (see below). Sustainable territorial planning and development guidelines are introduced by article 13. They replace DTAs. They “can determine the State’s objectives and principles in terms of urban planning, housing, transport, development of electronic communication, economic and cultural development, public areas, trade, conservation of natural areas, farmland and forestry, sites and landscapes, the coherence of ecological continuity, improvement of energy performance and greenhouse gas emission reduction in areas of national importance in one or more of these fields”. Although climate change adaptation may emerge from the themes presented (such as urban planning or ecological continuity), it is not as such part of them. This should be compared with article 14 which anticipates the integration of a number of concerns in PLUs and SCOTs yet does
58 59 60

61 62

63 64

http://www.assemblee-nationale.fr/13/rapports/r1133.asp#P2235_705500 Article 8 I 2° Grenelle I Law. Article 7 of the Grenelle I Law: “the State will encourage regions, departments and communes and their associations with over 50,000 inhabitants to establish, in consistency with urban planning documents and after consultation of the competent authorities in terms of energy, transport and waste, ‘territorial climate-energy plans’ by 2012” (extract). Law n° 2010-788 of 12 July 2010 on national commitment to the environment, JO 13 July 2010. Art. 68 Grenelle II Law completing the third paragraph of I of article L. 2224-31 of the General Code of Local Authorities. Art. 17 Grenelle II Law. Art. 75 Grenelle II Law. We note that among the authorities subject to the establishment of such a plan we find: “regions, if they have not integrated this in the regional climate, air and energy scheme”.

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not mention climate change adaptation. It may figure in climate-energy plans, but SCOTs and PLUs need only take them into account, which constitutes a minor obligation in terms of integration 65. To a certain extent, climate change is taken into consideration within the framework of the transposition of Directive 2007/60/EC on the assessment and management of flood risks. Although introduced by Government amendment, the opportunity of this transposition was not grasped to revise the integration of this risk in French law. While the text of the Directive left States considerable leeway in terms of its implementation, France settled for a minimal transposition without any real adaptation of the text to the national context66. The law therefore does not comprise the systematic, accurate and binding integration of acute natural risks on the shoreline by climate change in all coastal urban planning documents. This was however one of the commitments that emerged from the Grenelle Environment Round Table, and more so from the Grenelle Oceans Round Table. Nevertheless, we note that the question of climate change adaptation has gradually gained ground on the agenda of national public politicians. The Grenelle process has largely promoted this movement. We now turn to the question of how the issue of climate change adaptation has been taken into account on a local scale. Many measures can be adopted locally even before new provisions are adopted at national level.

65 66

Art. 13 Grenelle II Law. Anziani, A., Rapport d'information, fait au nom de la mission commune d'information sur les conséquences de la tempête Xynthia n° 647 tome I (2009-2010), Xynthia : une culture du risque pour éviter de nouveaux drames, 7 July 2010, 227p., p. 69s.

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2. Climate change adaptation on a local scale
As it appears at national level through the Grenelle process, adaptation to climate change in France’s coastal areas is first and foremost approached from a coastal risk management angle, whereby risks are accentuated by climate change. Competence in this field is mainly at national level (2.1). Yet by taking a wider view of the fields relating to this adaptation, we note that local authorities have a major role to play in this issue. They have many competences that may have an impact on climate change adaptation. In order to act consistently, local authorities should integrate this new issue in all their public policies (2.2). This demonstrates the extent of its inclusion in integrated coastal zone management (ICZM). How does ICZM actually incorporate climate change? Is it able to apply here one of its principles: adaptive management? (2.3).

2.1. Management of shoreline risks accentuated by climate change: mainly national-level competence
Over and above the institutional framework described in 1.1.1, some institutions are specific to major natural risk management. At national level, the strategic council for major natural risk prevention67, under the Ministry of the Environment, provides opinions and proposals in terms of natural risk prevention. At department level, a departmental major natural risk commission 68 contributes to the development and implementation of major natural risk prevention policies. This commission is chaired by the Prefect. Natural risk prevention in France is marked by heavily fragmented law, leading to major inconsistencies. The Xynthia report, an informative report on the consequences of storm Xynthia, attributed a large share of responsibility for the disastrous consequences of this climate event to the fragmented nature of law in this field69. Below we will first present the risk planning tools and their role in climate change adaptation (2.1.1 ), before outlining operational prevention of climate change impacts (2.1.2). 2.1.1. Natural risk planning Natural risk planning tools in coastal areas play an important role in climate change adaptation. They help to anticipate risks of fire, marine submersion and flooding, landslides (rockfall) etc., just some of the risks that will be aggravated by climate change. Planning tools help to foresee the future. They are therefore an opportunity to reflect and perhaps act on the future impact of climate change in coastal areas. Among such tools we find natural risk prevention schemes (2.1.1.1.), natural risk prevention plans (2.1.1.2.) and we can also make mention of the marine erosion aspect of sea enhancement schemes (SMVM) (2.1.1.3.). 2.1.1.1. Natural risk prevention schemes Natural risk prevention schemes can be developed by the Prefect, in collaboration with the competent local authorities70. They specify the actions to be taken in the department in terms of: • knowledge of risks
67 68 69

70

Art. D. 565-8 and onwards of the Environmental Code. Art. R. 565-5 and onwards of the Environmental Code. Anziani, A., Rapport d'information, fait au nom de la mission commune d'information sur les conséquences de la tempête Xynthia n° 647 tome I (2009-2010), Xynthia : une culture du risque pour éviter de nouveaux drames, op. cit., p. 68. Art. L. 565-2 and R. 565-1s. of the Environmental Code.

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• monitoring and prediction of the phenomenon • information and education on risks • integration of risks in land planning • risk reduction • feedback These schemes are “five-year plans establishing general objectives from a review and defining a programme of action”71. They could therefore be an opportunity for a global approach, on the scale of the department, to the impacts of climate change and to how climate change aggravates existing risks or generates new risks. Yet, as Jean-Marc Février explains “the problem is largely concealed by the Government which does not specify the legal scope of these schemes, nor the terms of their conjunction with risk prevention plans, no more than it does for their relationship with those other planning instruments that are flood prediction plans”72. In the department of Morbihan, prior to the introduction of a departmental coastal risk prevention scheme, a risk atlas project is under development. The atlas project has several objectives: - to determine the level of risk to which the shoreline is exposed: erosion and coastal flooding - to estimate the impact of sea level rise on the coastal area (static water body) - to identify the highest risk areas where risk prevention plans should be implemented. An initial effort has been made to develop this project. A map of natural coastal risks has been drawn up (coastal flooding, coastline evolution, forest fires…). http://www.odem.fr/dossiers/risques/carte_syntheserisquesnaturels.html; map of coastal flooding risks: http://www.odem.fr/dossiers/risques/carte_submersion.html; map of coastline evolution risks: http://www.odem.fr/dossiers/risques/carte_traitdecote.html; map of forest fire risks: http://www.odem.fr/dossiers/risques/carte_risquefeuforets.html; map of dam rupture risks: http://www.odem.fr/dossiers/risques/carte_rupturebarrage.html The atlas project will be a decision support tool for the definition of relevant coastal risk prevention actions on the scale of the department, but also on the scale of hydro-sedimentary units73. The “armed wing” of natural risk planning remains the natural risk prevention plan due to its binding nature. 2.1.1.2. Natural risk prevention plans Natural risk prevention plans (PPRN) were introduced by the 1995 Barnier Law74. The State, through its decentralised services, was in charge of drafting these plans. They aim to prevent natural predictable risks such as floods, landslides, avalanches, forest fires, earthquakes, volcanic eruptions, storms and cyclones75. A map of risks and PPRs established in France is available in the GASPAR database on natural and
71 72 73 74

75

Art. R. 565-1 of the Environmental Code. Février, J-M., "Actualité de la prévention des risques naturels", Environnement n° 3, March 2005, Study 4 See Tagazan database http://www.imcore.eu/tagazan/ Law n°95-101 of 2 February 1995 on the reinforcement of environmental protection; amended by the Bachelot Law n° 2003-699 of 30 July 2003 on the prevention of technological and natural risks and the repair of damages (JO of 31 July 2003). We note that prior to the Barnier Law several risk prevention tools existed, in particular risk exposure plans from the Law n°82-600 of 13 July 1982 on the compensation of victims of natural disasters (JORF of 14 July 1982). Rasse, G., Les plans de prévention des risques – La prévention des risques majeurs par la maîtrise de l'usage des sols, Paris: Lavoisier, Collection Sciences du risque et du danger, 61p., p. 1 Art. L.562-1 of the Environmental Code.

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technological risks and shows the stage at which the risk prevention plans are in the Gulf76. A methodological guide has been produced to assist in the drafting of coastal PPRs 77. Published in 1997, it includes very few references to climate change impacts and the way in which it suggests responding to them is limited to say the least. For instance, it states that “The delimitation of the hazard area for a 100 year term draws upon the knowledge of the annual erosion rate, minus past observation of the coastline. Its evolution is extrapolated for the long term, on the basis of dynamic conditions considered as invariable over time. It implicitly includes the current rate in sea level rise, but not its possible acceleration, in the absence of a scientific consensus”78; and further on “Acceleration in sea level rise over 100 years is not generally taken into consideration. The only exceptions may concern areas in which the potential impacts are considered to be high, upon the initiative of examining services and in the form of a safety margin”79. These plans have a major impact on the urbanisation of high risk areas. They define two types of areas. In areas exposed to risks, known as “danger zones”, all types of construction, structures, developments or agricultural, forestry, craft, commercial or industrial use is forbidden or authorised under certain conditions pertaining to their realisation, use and operation. In areas that are not directly exposed to risks but where constructions, structures, development or agricultural, forestry, craft, commercial or industrial use could aggravate risks or generate new risks, known as “precaution zones”, PPRNs outline the prohibition measures or recommendations on their realisation, use and operation. PPRNs also define the prevention, protection and conservation measures that must be taken, in both types of areas, by public authorities within the scope of their competence, as well as those that may be the responsibility of private individuals. They also define the measures on the planning, use or operation of constructions, structures, cropped or planted areas existing at the time of approval of the plan that should be taken by the owners, operators or users80. In an emergency, the Prefect can make the areas defined in a draft predictable natural risk prevention plan immediately binding81. This is not a hypothetical situation. Two cases demonstrate this possibility, whereby PPRNs have been urgently implemented due to a sharp rise in building applications in areas classified as a coastal flooding risk (CAA Bordeaux, 28 May 2003, SCI du Fier Les portes la grande jetée : revue juridique de l'environnement. 2/2005, p. 243; CAA Versailles, 3 Nov. 2005, Assoc. synd. autorisée des propriétaires de l'île de Vaux-sur-Seine, req. no 04VE03238). Currently, in the Morbihan area, three coastal PPRNs are under development. In Gâvres, the PPRN was ordered on 20 November 2008. In Sarzeau (Banatère – Penvins), preliminary studies are underway and the plan is due to be finalised by the end of 2010. Finally, in Ploëmeur (Anse du Stole), preliminary studies are underway and the plan is due to be finalised by the end of 201082. 2.1.1.3. Marine erosion appendix of SMVMs Sea enhancement schemes define “the fundamental principles of coastal development, protection and enhancement”. They apply to a section of territory that constitutes a geographical and maritime unit in a coastal area and “determine the general vocation of different areas and in particular areas dedicated to industrial and port development, mariculture and leisure activities. They specify the marine environment protection measures” as well as “the vocations of the different sectors of the maritime area and the principles of compatibility applicable to the corresponding uses, as well as
76 77

78 79 80 81 82

http://www.prim.net/professionnel/procedures_regl/export_gaspar/default.htm "Plans de prévention des risques littoraux (PPR) – guide méthodologique", Paris: La documentation française, 1997, 56p. Ibid. p. 28, italics ours. Ibid. p. 33. Art. L. 562-1 of the Environmental Code. Art. L. 562-2 of the Environmental Code. Source: Maud Lechat-Sahastume, manager of the Risks and Disturbance Unit of the Departmental Directorate of Territories and the Sea DDTM56/SRSR

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the resulting consequences for the use of the different sectors of land which are linked to the maritime area. They can, in particular, prescribe particular constraints concerning the related maritime, fluvial or terrestrial areas, necessary for the conservation of the marine and coastal environment”83. All SMVMs should include an appendix on marine erosion84. The SMVM for the Gulf of Morbihan includes an appendix entitled “Note on marine erosion” 85. This appendix is based mainly on a behaviour study entitled “Etude du comportement du littoral départemental : évaluation des risques et des enjeux” - Association Ptolémée, B. Latteux, l. David, Service Maritime DDE86 - November 2001. This study provides an overview of the situation, lists existing protective structures along the coastline and defines priority actions to be taken87. Within the context of the rise in sea level, climate change is briefly addressed: “In the longer term, relative sea levels in relation to the seafloor are affected by the vertical movements of the earth’s crust and by the rise in sea level caused by the greenhouse effect (…). The current trend is a rise of 1.3 mm/year on the French coastline: it therefore seems that by 2100 the sea level will have risen by between 25 and 95 cm. There are various secondary effects of this rise: increase in the frequency and force of storms and the extreme phenomena associated with them (swell, surge), cliff and beach erosion. These phenomena are uncertain and difficult to quantify, but can have repercussions on the maintenance cost of existing structures and the dimensions of future structures”88. The erosion study, drawn upon in the drafting of the SMVM, therefore clearly addresses the possible effects of climate change. Yet it does so in the long term, from today until 2100, the concern is therefore not pressing and the expected phenomena, “increase in the frequency and force of storms and the extreme phenomena associated with them (swell, surge), cliff and beach erosion” are qualified as “uncertain and difficult to quantify”. Furthermore, the only consequence in terms of prediction in public policies is the consideration that these phenomena “can have repercussions on the maintenance cost of existing structures and the dimensions of future structures”, i.e. adaptation considered exclusively from a point of view of physical defence against the sea. This is the case despite the fact that the text states that “The construction of vertical structures to protect marshes, cliffs and ports has been known to have consequences on the hydro-sedimentary balance of the shoreline. In Vannes for example, the construction of a wall between the Pointe des Emigrés and the Ile Conleau is believed to have slowed the current and therefore promoted sedimentation next to the wall”89. The study also analysed coastline evolution by superimposing the coastline outlined in the 18201840 geological survey map on that of orthophotographs from 2000 in order to identify areas of recession and accretion. The note on erosion warns that “a few sites should be more closely monitored: the area of Rudevent on the Île d’Arz, Pont Févis and Bénance in Sarzeau” and also indicates that “certain defence structures against the sea may present a future risk for human activities”, quoting a few examples “in Arzon (Pointe de Pen Castel): high erosion of loose cliffs, ineffective riprap; in Saint Armel (Corn Bihan): areas ruined in front of buildings; in Arradon: structures collapsed in front of loose cliffs; on the Ile d’Arz (Nenezic): ineffective structure in front of a coastal path; on the Ile d’Arz (Rudevent): structure partially collapsed in an area subject to high erosion.”90. The study concludes with the need to conduct a further, global study on erosion in the
83

84

85 86 87 88 89 90

Article 57 amended by the Defferre Law (Law 83-8 of 07 January 1983 on the distribution of competences between communes, departments, regions and the State). Art. 5 Order n°86-1252 of 5 December 1986 on the content and preparation of sea enhancement schemes, JORF of 9 December 1986 page 14791 Appendix "Note sur l'érosion marine", p. 22-27. Departmental Equipment Directorate Ibid. p. 22. Ibid. p. 23, bold emphasis ours. Ibid. Ibid.

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Gulf of Morbihan. The measures included in the SMVM do not however appear to take into account and anticipate the concrete problems related to erosion and highlighted by this study, whose results can be found in the appendices. In the specific case of coastal areas, the expected impacts of climate change (sea level rise and probable increase in the number of storms) imply the definition of strategies. 2.1.2. Prevention strategies against the impacts of climate change in coastal areas In coastal areas, two types of strategies in response to the expected impacts of climate change exist and are sometimes combined: defence against the sea (2.1.2.1) and strategic retreat (2.1.2.2). 2.1.2.1. Defence against the sea The Coastal Law establishes the principle of the preservation of the shoreline’s natural character, yet sea defence operations are among exceptions to this principle 91. It is therefore legally possible to build such structures. France has 1,350 kilometres of sea defence structures, covering 19% of the shoreline92. Generally, two types of sea defence systems are distinguished. So-called “hard” methods involve constructing heavy defence structures such as sea walls (longitudinal structures along the coast), dykes, groynes (perpendicular to the coast), breakwaters (large structures sitting 2 or 3 metres deep) and riprap (structure composed of boulders). In the Gulf of Morbihan, there are many sea defence structures: riprap, sea walls, revetments and dykes93. More recently, so-called “soft” methods have been developed, enabling reversible defence against the sea, to a certain extent accompanying natural coastline evolution. This involves techniques such as re-supplying beaches with sediments, geotextiles, beach drainage and dune mobility support 94. In the Gulf of Morbihan, barriers made of electricity poles can be seen95. We now propose to investigate who can take the initiative to build such structures (2.1.2.1.1) and to specify the legal regime which they come under (2.1.2.1.2). 2.1.2.1.1. Who can decide to build sea defence structures? In accordance with a law dating back to 1807 and still in force, the owner is responsible for protecting his own property96. This principle is supported by established precedents refusing owners the power to demand that public authorities protect their property against the action of water bodies 97 .
91

92

93 94 95 96

97

Art. 27 of the Coastal Law; codified in art. L. 321-6 of the Environmental Code which refers to the provisions of art. L.2124-6 of the General Code of Public Entity Properties: “Outside of port and industrial port areas, and with the exception of defence operations against the sea and the construction of structures and installations necessary for maritime safety, national defence, fisheries, salt production and mariculture, no harm must be done to the natural state of the shoreline (…)”. Bold emphasis ours. Ministère de l’Écologie, de l’Énergie, du Développement durable et de la Mer (MEEDDM), La gestion du trait de côte, Paris: Editions Quæ, 2010, 290p., p. 79. SMVM for the Gulf of Morbihan, Marine erosion appendix p. 25. MEEDDM, La gestion du trait de côte, op. cit., p. 80. SMVM Gulf of Morbihan, Marine erosion appendix p. 25 and photograph p. 26. Law of 16 September 1807 on marsh dry-out “in terms of the construction of sea walls or walls on the banks of rivers and navigable streams, the necessity shall be assessed by the Government and the cost incurred by the properties protected, proportionally to their interest in the work, except if the Government believes it to be useful and just to provide assistance through public funds”. See also: Ministère de l'aménagement du territoire et de l'environnement, Ministère de l'équipement, des transports et du logement, Plans de prévention des risques littoraux, guide méthodologique, Paris: La documentation française, 1997, 54 p., p. 44. CE Ass, 17 May 1946, Min. des travaux publics c/ Commune de Vieux Boucau, Rec., p. 135. See Bécet, J-M., "Le droit face au problème de l'érosion marine", DMF, 1996, p.666 Bordereaux, L. and Braud, X., Droit du littoral, Paris: Lextenso éditions, Collection Master Pro, 443p., p. 66.

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If he decides to do nothing, his property will gradually become part of the public maritime domain as erosion progresses98. To organise the construction of sea defence structures, the owners concerned can join together to form an authorised union association as outlined in order n°2004-308 of 1st July 2004 amended by Law n°2006-1772 of 30 December 2006 on water and aquatic environments 99. The structures built and funded within this framework are therefore considered to come under public interest. In the case of failure by the association, “the administrative authority may, (…) automatically, at the expense of the association, execute the work in question, if the association’s failure to do so is liable to cause severe harm to public interest…”. In theory, the cost of this work is therefore covered by the land owners and this final provision aims to ensure that structures will continue to be maintained, at the owners’ expense100. However in practice, the establishment and maintenance of sea defence structures are largely implemented by public authorities101. The 1807 law already provided for the possibility for the Government to provide “assistance through public funds” if it “believes it useful and just”. Then, following the Law n°73-624 of 10 July 1973 on defence against water (amended), today codified in the Environmental Code, local authorities, their associations and mixed unions are authorised to “undertake the study, execution and operation of all work, actions, structures or installations of public interest or in an emergency situation, through the SAGE if such a plan exists, targeting: (…) Defence against flooding and against the sea.”102. In France, there is no global planning of coastline management. The text specifies that local authorities’ action is taken within the framework of the SAGE where one exists, however, firstly such schemes do not exist for all areas and secondly they are on a reduced scale 103. The same observation can be made for the erosion appendix of Sea Enhancement Schemes and Natural Risk Prevention Schemes (on, however, a greater scale, that of the department). The absence of larger scale planning results in a lack of cohesion between actions, which is all the more acute when erosions problems occur in surrounding areas following the erection of a sea defence structure. Alain Merckelbagh explains that “To stop the erosion of very popular beaches, groynes, built perpendicular to the coast, have been constructed in the past to trap sediment cross flow. Yet often sediment that is retained up-current damages parts of the beach located down-current. The problem of erosion is transferred and, with it, its solution of new groynes. This explains why, due to this catch-22 situation, series of groynes line our coasts” 104. Although the author specifies that today milder preservation methods are being tested, the lack of overall planning opens the way to the renewal of this type of problem transfer. Originally, local authorities that took the initiative to build structures were not responsible for their maintenance105. The law of 10 July 1973 put an end to this situation by making coverage of the cost
98

99

100

101 102 103 104

105

Coulombié, H. et al., Droit du littoral et de la montagne, Paris: Litec, 2009, 512p. See the definition of the public maritime domaine at articles 2111-4 to 2111-6 of the General Code of Public Entity Properties. Ibid. p. 216. Order letter from the Secretary of State in charge of Ecology, N. Kosciusko-Morizet, to the Vice President of the General Council for the Environment and Sustainable Development, C. Martinand, dated 21 August 2008, subject: Mission relating to defence against the sea on the Channel-North Sea façade. Ibid. p. 216. MEEDDM, La gestion du trait de côte, op. cit., p. 81. See above. Art. L.211-7 of the Environmental Code. The same can be said for Sea Enhancement Schemes (SMVM) which should take into account marine erosion. Merckelbagh, A., Et si le littoral allait jusqu'à la mer ! - La politique du littoral sous la V° république, Paris: Editions Quæ, 351p., p. 234. CE, 26 April 1918, Saint-Mleux, rec. p. 365.

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of maintenance and conservation of these structures mandatory106; the same goes for union associations of land owners when they conduct such operations (see above). 2.1.2.1.2. Legal regime applicable to the construction of sea defence structures Article 25 of the Coastal Law and established precedents supporting it allow, to a certain extent, an integrated approach to coastal management. Prior to operations, the structure, if it is sufficiently large107, should be compatible with urban planning documents. The structure should also take into consideration requirements in terms of the conservation of sites 108, the coastal landscape and biological resources109. With the exception of the State, the public or private person who undertakes the construction of a sea defence structure on the public maritime domain should make a request for a concession on the public maritime domain to the Prefect110. The request should include the envisaged maintenance arrangements; the proposed monitoring arrangements for the project, from the initial survey, and installation, as well as impact on the environment and natural resources; and finally, where relevant, the nature of operations required to reverse alterations made to the natural environment and the site, as well as site restoration and rehabilitation at the end of the authorisation or use 111. These elements should be provided by the impact study, required for all “sea defence” structures covering over 2,000 m²; below this value, a simple impact notice, which is easier to conduct, is required 112. These provisions enable the incorporation of environmental concerns in the construction of sea defence structures. A project manager building a protective structure against the sea on the public maritime domain without such an authorisation is committing an offence 113. The marine erosion appendix of the Gulf of Morbihan SMVM specifies that “for existing structures, strict restoration should be preceded by regulatory control. If some of them have been built without a public maritime domain occupation authorisation, regularisation should be requested before taking any further action”114. Through the legislation on water, an authorisation (or a declaration for smaller projects) is required for structures built in contact with the marine environment and for sea walls115. Local authorities that wish to construct a sea defence structure should follow the procedure described in articles L. 151-36 and onwards and R. 151-40 and onwards of the Rural Code. This
106 107 108 109

110

111

112

113 114 115

Coulombié, H. et al., Droit du littoral et de la montagne, op. cit., p. 215. Art. L. 151-40 of the Rural Code. CE 18 Oct. 1978, n° 4466, Min. de l'équipement c/ association "Les amis des chemins de ronde". CE 13 Nov. 2002 Commune de Ramatuelle, req. n°219034. Art. 25 of the Coastal Law of 3 January 1986 “Decisions on the use of the public maritime domain take into account the vocation of the areas concerned and that of neighbouring terrestrial areas, as well as requirements in terms of the conservation of coastal sites and landscapes and biological resources; such decisions are coordinated in particular with those relating to neighbouring land with a public vocation. Subject to particular texts on national defence and maritime security requirements, all substantial changes in the use of areas of the public maritime domain must be subject to prior public enquiry (…)” Codified in article L.321-5 of the Environmental Code, referring to article L. 2124-1 of the General Code of Public Entity Properties CG3P. In accordance with article L.2124-3 of the General Code of Public Entity Properties and Order n° 2004-308 of 29 March 2004 on concessions of use of the public maritime domain outside of ports. Art. 2 f), g) and h) of Order n° 2004-308 of 29 March 2004 on concessions of use of the public maritime domain outside of ports. MEEDDM, La gestion du trait de côte, op. cit., p. 83. Art. R. 122-5 table, line 22° and R. 122-9 paragraph 12 of the Environmental Code. Coulombié, H. et al., Droit du littoral et de la montagne, op. cit., p. 214. SMVM Marine erosion appendix p. 27. Section 4.1.2.0 of Order n°2006-881 of 17 July 2006 on port development work and other structures constructed in contact with the marine environment with direct impact on this environment. Where their value is greater than or equal to 1,900,000 EUR, an authorisation is required; where their value is greater than or equal to 160,000 EUR but less than 1,900,000 EUR, a declaration is required. Section 3.2.6.0 of Order n°2006-881 of 17 July 2006, an authorisation is required for protection walls against flooding and submersion.

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procedure involves the development of a maintenance and operation programme for the structure and, other than in exceptional cases, a public enquiry116. The legal entity that prescribed or conducted the work can attribute the cost of construction, maintenance and operation of the structure to those who made the work necessary or those in whose interest the work was conducted. Here this is the case of coastal landowners. The text nevertheless specifies that “when the contribution to the work is greater than a third of the value prior to the work of the property benefiting from it, the owner may demand that the legal entity purchase his property within a period of 2 years from the date of the request (...)” 117. The distribution of costs is laid out in the maintenance and operation programme for the structure. The general basis of this distribution is established according to the extent to which each person involved made the work necessary or to which it was in their interest. In practice, it appeared, following work conducted through the research programme EUROSION on a European scale, including in France, that “The cost of measures intended to reduce the risks related to erosion is mainly covered by national and regional public funds, to a lesser extent by the populations concerned and practically never by the owners of threatened properties nor by those responsible for coastal erosion”118. In the Gulf of Morbihan, there are many sea defence structures and the marine erosion appendix of the SMVM considers “their general condition (…) moderate to poor”. It notes, for instance, that the communes of Baden and Arzon have 35 such structures. However, it specifies that in certain cases, the poor condition of a structure is not alarming, quoting the example of an old salt marsh protection wall which is today abandoned as no particular conservation measures are required119. 2.1.2.2. Strategic retreat In anticipation of the announced establishment of a global coastline management strategy incorporating the question of strategic retreat (see above), provisions already exist enabling strategic retreat to a certain extent. These provisions take the form of restrictions on shoreline constructions, expropriation measures (2.1.2.2.1.) and pre-emption rights (2.1.2.2.2.). 2.1.2.2.1. Shoreline construction restrictions based on urban management The Coastal Law prohibits constructions and installations within a 100 m coastal strip from the upper shore limit120. This distance can be extended to over 100 m when justified by motives related to site sensitivity or coastal erosion. The PLU should define the 100 m 121 strip that it may extend “to over 100 m, where justified by motives related to site sensitivity or coastal erosion” 122. The Council of State has even been known to grant such an extension for other motives 123. We may therefore suppose that beyond the classic phenomenon of erosion, the judge could consider it possible to extend the coastal strip beyond 100 m on the basis of the predicted rise in sea level due to climate change. Exceptions to the no build rule in the 100 m strip are already urbanised areas and constructions and installations required for public services or economic activities requiring immediate proximity to
116 117

Art. L. 151-37 of the Rural Code. Art. L. 151-36 of the Rural Code. 118 European Commission “Living with Coastal Erosion in Europe: Sediment and Space for Sustainability”, Luxemburg: Office for official publications of the European Communities, 2004, 40p. See also http://www.imcore.eu/tagazan/ 119 SMVM Marine erosion appendix p. 26. 120 Art. L.562146 of the Urban Planning Code. The upper shore limit coincides with the limit of the public maritime domain (DPM) except in the presence of alluvial deposits following the publishing of the Law of 28 November 1963. N. Calderaro, Loi littoral et loi montagne – guide de jurisprudence commentée, Paris: Edition formation entreprise, 2005, 675p. 121 Art. 146-4-III of the Urban Planning Code. 122 Art. 146-4-III paragraph 3 of the Urban Planning Code; see CE 17 June 1998, Association de défense des propriétaires longevillais req. n° 169463. 123 CE 21 April 1997, Conan et al. BJDU 3-1997, p. 220.

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water such as marine culture. These exceptions have been interpreted very strictly by judges in the many past examples of such cases. They aim to prevent what is known as creeping urbanisation, as well as economic activities that do not really require immediate proximity to water such as restaurants or sea spas. Furthermore, in a wider context, in areas close to the shore, urban extension is only possible to a limited extent and under certain conditions124. The judge evaluates the notion of coastal areas according to the distance between the land plot and the shore, the visibility between the plot and the shore and the specific site configuration (separated by an urbanised area or relief)125. Legislative provisions also ensure that new roads are not built too close to the shoreline. New transit roads are located a minimum distance of 2,000 m from the shore. The creation of new roads on beachs, lagoon edges or sea cliffs is prohibited, as are new local roads on or along the shoreline. The urban motorway project in Vannes was therefore judged illegal126. This prohibition principle also has some exceptions: cases of constraints related to site configuration or insularity and, in the coastal strip, in urban areas or areas necessary for public services or economic activities requiring immediate proximity to water127. Furthermore, an exception is also made for installations, constructions and development of new roads and structures required for maritime and aerial security, national defence, civil protection and those required for airfields and public port services other than marinas fulfilling a technical necessity. This provision is more general as it covers all the provisions in the chapter on provisions specific to the shoreline, chapter VI of the Urban Planning Code. Finally, information on risks may also prompt the limitation of urbanisation in the areas concerned. A description of the risks and their predictable consequences for humans, property and the environment as well as the presentation of prevention and conservation measures to mitigate their effects are recorded in a departmental record of major risks established by the Prefect and in a community information document on major risks (commonly known as Dicrim) established by the mayor128. Specific informative measures are also anticipated for buyers and tenants of buildings in areas covered by an ordered or approved PPRN129. SMVMs, recognised urban planning documents by the Council of State130, could be the opportunity to reflect on the expected impacts of climate change in the local area. This has not been the case in the Gulf of Morbihan where climate change concerns are only touched upon in the text of the SMVM which was adopted in April 2006131. However, the map of the host capacity of NA areas (future urbanisation areas) in the land use plans (POS) of the communes in the Gulf of Morbihan shows urbanisation predications in areas close to the shore, raising questions with respect to the risks generated by climate change. Areas close to the shore, although subject to the principle of limited extension, represent 28% of urban development areas132. The potential impacts of climate change on shellfish farming for instance, an activity whose importance is recognised and whose seafront position is guaranteed by the SMVM, are not
124 125

Art. L. 146-4-II of the Urban Planning Code. Coulombié, H. et al., Droit du littoral et de la montagne, Paris: Litec, 2009, 512p., p. 155s. CE 3 May 2004, Mme Barrière. 126 CE, 12 December 2007, Commune of Séné, n°290312 BJDU 6-2007, p. 451 conclusions Guyomar. 127 Art. L.146-7 paragraphs 5 and 6 of the Urban Planning Code. 128 Art. R0.125-11 of the Environmental Code. 129 Art. L. 125-5 and R. 125-23 of the Environmental Code. 130 CE 7 July 1997, Association Sauvegarde de l'étang des mouettes et de l'environnement (BJDU, 5/97, p. 315, conclusions J.C. Bonichot); Bécet, E., and Bécet, J-M., "Les documents d'urbanisme littoraux", Voiron: Editions territorial, 2008, 121p., p. 43. 131 These concerns are more present in the appendix on marine erosion, see above. 132 SMVM for Morbihan p. 52.

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anticipated. Yet this activity would be particularly disturbed by the predicted coastline evolution under the influence of global warming. 2.1.2.2.2. Expropriation and no build areas based on risk management Natural Risk Prevention Plans (PPRN) can limit (impose conditions) or prohibit construction in risk areas (see above). Furthermore, when “Population conservation and protection means prove more costly than expropriation compensation” in the face of a predictable risk, in particular a landslide risk, the State may declare the expropriation of properties to be in public interest. Expropriation may be applied by the State, communes or groups of communes 133. This was the case in the commune of Criel-sur-Mer due to progressive cliff erosion, endangering homes134. The mayor also has general police powers whereby he must ensure public security. Within this context, the mayor can prescribe the prohibition of residency, traffic and parking in an area below a cliff threatening to collapse135. Furthermore, in accordance with article L. 2212-4 CGCT, he can, in the case of grave or imminent danger, such as sea wall rupture, flooding or rock fall, prescribe the implementation of the safety measures required by the circumstances. The mayor also has police power over buildings threatening to collapse 136. This enables him to take temporary or limited prevention or conservation measures137. In the event of failure by the mayor or if the scope of application of the decision exceeds the area of the commune, the Prefect will assume the general police powers 138. Furthermore, the Prefect can refuse a land use project or impose special prescriptions (location and service of constructions, developments, installations or works) “if it is liable to be detrimental to public health or public safety due to its situation, characteristics, scope or location next to other installations” 139. The Prefect can therefore take action if he considers that there is a danger in terms of erosion or coastal flooding, even in the absence of a PPR. Communes can contribute to strategic retreat by defining plots which, in the long term, according to sea level rise scenarios, would be at risk as no build areas in their PLUs. However this option is politically difficult to adopt. It would lead to a major drop in the market value of the plots in question. The Coastal Law, which limits urbanisation in coastal areas, is already perceived as highly restrictive and is therefore regularly contested140. It currently appears difficult to imagine that mayors of coastal communities should decide to regulate urbanisation more strictly than imposed by law. All the more so as the development of Natural Risk Prevention Plans (PPRN) is the responsibility of the State141 on which we may imagine that local political pressure is less intense 142. Several precedent cases have demonstrated the enforcement procedure of a draft PPRN in an emergency due to many building permit applications following the announcement of the project 143
133

134 135 136 137

138 139 140

141

142 143

Art. L. 561-1 of the Environmental Code; Coulombié, H. et al., Droit du littoral et de la montagne, Paris: Litec, 2009, 512p., p. 212s. See sheet “Expropriations in Criel-sur-Mer” in the Tagazan database http://www.imcore.eu/tagazan CE 17 January 1964, Société Thermale de l'Aude, req. p. 25. Art. L. 2212-2 and 2213-24 CGCT “The mayor could also, in accordance with the general police powers granted to him by the provisions (…) of articles L. 2212-2 and L. 2212-4 of the General Code of Local Authorities, take temporary or limited prevention or conservation measures; he was not, however, in accordance with these same dispositions, entitled to take permanent and definitive measures depriving the current owner of the use of his property by prohibiting all occupation of the building in anticipation of a possible friendly acquisition by the commune”. See the following ruling: CE SSR 21 October 2009. Art. L.2215-1 CGCT. Art. R. 111-2 of the Urban Planning Code. Law n°86-2 of 3 January 1986 on coastal development, protection and enhancement, JORF of 4 January 1986, page 200 (regularly amended). L. 562-1 of the Environmental Code; see Sansévérino-Godfrin V., 2008, Le cadre juridique de la gestion des risques naturels, Paris: Lavoisier, Collection Science du risque et du danger, série Notes de synthèse et de recherche, 71p. Articles L. 562-1 to L. 562-9 of the Environmental Code. CAA Bordeaux, 28 mai 2003, SCI du Fier Les portes la grande jetée : revue juridique de l'environnement. 2/2005,

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(see above). We note that the Prefect exerts a legality control over planning documents such as PLUs 144 or SCOTs145 at the time of their approval, as well as over individual land use authorisations such as building permit146. If they are not in compliance with the PPRN, the Prefect may refer the matter to the administrative court for annulment of the act. The national climate change adaptation strategy recommends the reinforcement of this control (see above). Existing social pressure to thwart the adoption of prevention measures was widely exposed following storm Xynthia which resulted in a coastal flooding phenomenon with disastrous consequences. Following the storm, many inhabitants and local councillors protested against the expropriation measures under adoption to prevent future disasters with predictable and proven risks. In the face of such reactions, we can imagine the major difficulty that a strategic retreat approach is liable to encounter. 2.1.2.2.3. Pre-emption rights The pre-emption right is a “right recognised in certain cases by the Administration (…) to acquire ownership of a property upon its alienation preferentially over all other buyers” 147. It may prove to be a useful tool to experiment or conduct a dynamic coastline management strategy for instance. Several public entities have a pre-emption right that can be used in this way. The commune has an urban pre-emption right (DPU). Upon the initiative of the commune, it can be exerted on urban areas or urban development areas in the PLU. Initially used for urban development reasons, its purpose has been extended to the disturbance and risk reduction policy, in particular in certain areas exposed to a natural risk148. The department benefits from a special pre-emption right exerted on pre-defined areas for the implementation of its policy on sensitive natural areas 149. The objectives of this policy are as follows: “to preserve the quality of sites, landscapes, natural environments and natural flood plains and to conserve natural habitats (…)”150. The Conservatoire du littoral151 benefits from a pre-emption right in the case of cession of a coastal site152; it can also expropriate153. Within this context, it purchases remarkable natural areas on the shoreline. However the Conservatoire du littoral does not simply purchase such areas. It rehabilitates them and conducts scientific monitoring. Their management is generally ensured by local authorities and associations154.
p. 243; CAA Versailles, 3 Nov. 2005, Assoc. synd. autorisée des propriétaires de l'île de Vaux-sur-Seine, req. no 04VE03238. Art. L. 123-12 of the Urban Planning Code. Art. L. 122-11 of the Urban Planning Code. Art. L. 424-7 of the Urban Planning Code, Art. L. 2131-1 and L. 2131-2 of the General Code of Local Authorities. Guillien, R., et al., Lexique des termes juridiques 2010, Paris: Dalloz, 17th edition, 769p. Art. L. 211-12 and L.515-16of the Environmental Code. Jacquot, H. and Priet, F., "Droit de l'urbanisme", Paris: Précis Dalloz, 2008, 6th edition, 978p., p. 481s. Art. L. 142-1 and onwards and R. 142-1 and onwards of the Urban Planning Code. Becet, J-M., "Les compétences du département" in Bonnard, M. (coord.), Les collectivités territoriales, Paris: La documentation française, 2008, Collection Les notices, 254p., pp.91-98, p. 95; Dantonel-Cor, N., "Les collectivités territoriales et l'environnement" in Bonnard, M. (coord.), Les collectivités territoriales, op. cit., pp. 131-138, p. 132. Art. L. 142-1 of the Urban Planning Code. Public administrative establishment. Articles L. 322-4 of the Environmental Code and L. 142-3 of the Urban Planning Code. Art. L. 322-4 of the Environmental Code. Article L. 322-9 paragraph. 2 of the Environmental Code: “The buildings in areas under the Conservatoire de l'espace littoral et des rivages lacustres (Conservatory of coastal areas and lake banks) may be managed by local authorities or associations of such authorities, or public establishments or approved specialised foundations and associations which incur the costs and collect the corresponding income. Priority is given, upon their own request, to local authorities in the area in which the buildings are located. The conventions signed between the conservatoire and the managers expressly define the use to be given to such land (…)”

144 145 146 147 148

149

150 151 152 153 154

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The Conservatoire du littoral became rapidly aware of the importance of climate change for these sites. An initial study was conducted on this issue in the early 2000s under the influence of scientists familiar with the question of climate change and members of the conservatoire’s scientific committee: Paskoff and Verger. They are the co-authors of the study published in 2004155. Yet today still, the integration of climate change in the conservatoire’s site management plans remains marginal. Local authorities, councillors and managers had difficulty in looking forwards, in envisaging the effects of climate change, other than in areas experiencing such change like in the Camargue. Nevertheless, the situation appears to be evolving today156. Among the new elements to be taken into account targeted by the objectives contract (2009-2011) between the State and the Conservatoire du littoral figure “anticipations and adaptations to be envisaged in terms of site acquisition and management” on the “confirmed extent of climate change, with: the gradual rise in sea level, and in the long term the flooding or submersion of some of the Conservatoire’s plots; the impacts on biodiversity related to this climate change”. Such a study is currently under preparation. It aims to update the study published in 2004, which was simply a diagnosis. The third phase which should now be operational was not conducted. The new study should take a more operational approach. The Conservatoire du littoral aims to formalise its position on a strategy to be followed relating to the integration of climate change in the site acquisition and management policy. Nevertheless, it does not aim to rigidify its position; the diversity of site contexts requires a pragmatic approach that it wishes to pursue. Henceforth, it should define strategic and operational principles and objectives, integrating a decision support tool in the form of an analysis grid taken from pilot sites intended for non-pilot site managers157. In the absence of urbanisation on sites belonging to the Conservatoire du littoral, acceptance of coastline shift is generally not confronted with major safety issues. Also, at this stage, the Conservatoire du littoral tends towards the acceptance of natural shoreline evolution modulated by the local economic, social, ecological and financial context. If natural site evolution threatens urban areas with coastal flooding or jeopardises major economic assets, the conservatoire may intervene158. In the Gulf of Morbihan, pre-emption rights have been applied in particular by the department, for remarkable sites, and by the conservatoire159. Many options are therefore available for very upstream risk management related to coastline evolution due to climate change. However the expected impacts of this phenomenon are not restricted to an increase in coastal erosion and occurrences of coastal flooding. Despite the recent nature of the integration of these changes – temperature rise, ecosystem alteration… –, local authorities already possess many skills enabling them to work on this question.

155

156 157

158

159

Clus-Auby (C.), Paskoff (R.) and Verger (F.), Impact du changement climatique sur le patrimoine du conservatoire du littoral - Scénarios d’érosion et de submersion à l’horizon 2100 – Synthèse, Conservatoire du littoral et Fondation d'entreprise Propter & Gamble pour la protection du littoral, 2004, 43p., http://www.conservatoire-dulittoral.fr/tmp_old/Rapport%20Changement%20climatique.pdf Interview with Jade Isidore, Conservatoire du littoral. Ibid. Rouillard, C., "La prise en compte du réchauffement climatique dans la stratégie du Conservatoire du littoral Eléments de cadrage pour l’intégration des conséquences du réchauffement climatique dans la stratégie du Conservatoire du littoral : problématique, premières orientations et recommandations en termes de formalisation et de communication", étude de cadrage Conservatoire du littoral, September 2008, 34p., p. 10. Rouillard, C., "La prise en compte du réchauffement climatique dans la stratégie du Conservatoire du littoral" op. cit. p. 12-13. Queffelec (B.) and Philippe (M.) "La gestion des zones côtières dans le golfe du Morbihan : regard du projet Corepoint" Corepoint 2008 report, co-funding by Interreg and the region of Brittany, CG Ille-et-Vilaine, CG Morbihan, 148p.

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2.2. The place of local authorities in climate change adaptation
For the past few years, local authorities have been able to implement territorial climate plans. As a pilot initiative, these plans had no specific legal framework (see below). The Grenelle Law created not only a framework but an obligation for local authorities to establish territorial climate-energy plans and regional climate, air and energy schemes. We will begin by presenting the content of this evolution (2.2.1) before demonstrating that local authorities have an essential role to play, given their skills that have an impact on climate change adaptation. This attempt at an inventory also aims to show how important it is that this question be integrated into all public policies to be addressed effectively (2.2.2). 2.2.1. Climate change adaptation planning The Grenelle Laws introduce planning tools in terms of climate change: at regional level, regional climate, air and energy schemes (2.2.1.1) and territorial climate-energy plans (2.2.1.2). 2.2.1.1. Regional climate, air and energy schemes In terms of climate change adaptation, regional climate, air and energy schemes establish, on a regional scale and with a 2020 and 2050 outlook, the guiding principles liable to contribute to the attenuation of climate change effects and adaptation to these effects160. The text of the law specifies the sources upon which the draft scheme is dependant: “the draft scheme draws upon an inventory of atmospheric pollutant and greenhouse gas emissions, an energy balance, an assessment of energy potential, for renewable and recovered energy, as assessment of the possible improvements in terms of energy efficiency as well as an assessment of air quality and its effects on public health and the environment conducted on a regional scale and taking into account both economic and social aspects”. While it is easy to understand the relevance of these elements in the definition of the objectives of the scheme in terms of air quality, energy management or renewable energy development, the available sources liable to assist regions in the construction of climate change adaptation objectives are more open to questioning. A review of natural risks aggravated by climate change such as flooding and marine submersion could for instance be usefully added to this list161. Both the State and local authorities are involved in the development of these schemes. The regional Prefect and the President of the Regional Council jointly draw up the plan, after consulting the local authorities concerned and their associations. Public participation, as provided for by law, remains minimal. The draft scheme is made available to the public for a minimum duration of one month. It is then submitted for approval to the deliberative body of the Regional Council, then adopted by the regional Prefect. The scheme is evaluated and may be revised at the end of a five year period 162. All regions are required to establish such a scheme by 13 July 2011. 2.2.1.2. Territorial climate-energy plans Through its debates on the text of the Grenelle I Law, the Commission for economic, environmental and territorial affairs specified the meaning of the notion of “territorial climate-energy plan”. In its report, it states that “‘Territorial climate-energy plans’ are documents resulting from a voluntary, shared approach, driven by both a political and operational dimension, and focused on energy and climate. They are not a turnkey solution, but rather a sustainable development approach in which the population and all players (public, private, individual) must be involved. They therefore constitute a community approach in the field of sustainable development” 163. These plans aim to
160

161 162 163

Art. 68 Grenelle II Law completing the third paragraph of I of article L. 2224-31 of the General Code of Local Authorities. Art. L. 222-1 of the Environmental Code. Art. L. 222-2 of the Environmental Code. Jacob, C., Rapport fait au nom de la commission des affaires économiques, de l’environnement et du territoire sur le

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reduce greenhouse gas emissions but also to encourage territorial climate change adaptation. To do so, they establish objectives and define programmes of action. “They are generally divided into five main sections: – a piloting system organised around partners and local players – assessment of greenhouse gas emissions (identification of emission sources, quantification of emissions (without restricting research to large facilities)) and reduction potential – strategic and operational objectives for the attenuation of and climate change adaptation – an action plan, based on existing actions, so as to list, organise and reinforce them, but also defining additional actions in order, if possible, to generate synergies – a results monitoring and evaluation system”164. Presented as optional in the Grenelle I Law, the climate-energy plan became mandatory with the Grenelle II Law which inspirationally outlined the elements presented by the Commission for economic, environmental and territorial affairs. Taking into consideration greenhouse gas emissions165, this plan defines: • “The authority’s strategic and operational objectives in order to attenuate and efficiently respond and adapt to global warming • The programme of actions to be conducted in order to improve energy efficiency, increase renewable energy production and reduce the impact of activities in terms of greenhouse gas emissions, in compliance with the objectives defined in the European legislation on energy and climate • A results monitoring and evaluation system”166. The public authorities required to establish such a plan are “The regions and Corsican local authorities, if they have not integrated it in the regional climate, air and energy scheme mentioned in article L. 222-1, the departments, urban communities, conurbation communities and communities of communes of over 50,000 inhabitants”. They must have adopted their plan by 31 December 2012 167 . It is also worth noting that when these public authorities launch the development of a territorial sustainable development plan or local Agenda 21, the territorial climate-energy plan constitutes its climate section. We see here the legislator’s will both to incorporate this new system within the existing landscape of plans contributing to sustainability in local authorities, as well as to take into account the historical implementation of pilot territorial climate plans which were able to use the local Agenda 21 as a framework at a time when no legal foundations existed for these plans. Nevertheless, the legal constraint introduced by these plans is reduced by the fact SCOTs and PLUs must only take them into account and need not be compatible with them168. A website was launched by ADEME to provide support to local authorities for the development of these plans: http://www.pcet-ademe.fr/. The text of the Law states that public authorities required to implement such a plan must define the objectives and a programme of action according to their respective competences. It is worth noting
projet de Loi relatif à la mise en œuvre du Grenelle de l’environnement (n° 955), report n°1133, 1st October 2008, 656p., p. 248. Ibid. p. 249. Described in article L. 229-25 of the Environmental Code. Art L. 229-26 II of the Environmental Code. Art L. 229-26 II of the Environmental Code. Art. L. 111-1-1 paragraph 3 of the Urban Planning Code for local urban plans; Art. L. 122-1-12 of the Urban Planning Code for SCOTs.

164 165 166 167 168

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that in terms of climate change adaptation, and within the scope of our study we will focus on this aspect, a myriad of skills are available. 2.2.2. A myriad of skills available for climate change adaptation Although they are generally not intended for this purpose, local authorities’ skills can be used to respond to climate change. In this section, we will attempt to review the skills that may be put towards circumstantiated climate change adaptation. Local authorities are able to use their competences in terms of urban and land planning (2.2.1), tourism (2.2.2), the environment (2.2.3), economic aid (2.2.4), transport and networks (2.2.5), housing and buildings (2.2.6) and, finally, through the “general competence clause” (2.2.7). 2.2.2.1. Urban and land planning Urban and land planning skills are important in terms of climate change adaptation in coastal areas. The aim is to anticipate future evolutions in the land configuration, including with respect to erosion and sea level rise. Land planning tools are often presented as an opportunity to develop a land use project. It is important to look towards to future, taking into consideration climate change predications. A connection should be made with risk planning tools operated by State services (see above). While State services may be in a better position in terms of urbanisation limitation as they are less subject to local pressure, land planning has wider scope and generally covers environmental concerns, working towards sustainability. In the field of urban planning, communes and their competent associations 169 are competent to draw up local urban plans (PLU) and territorial coherence schemes (SCOT). They can therefore promote residential densification. The Regional Nature Park (PNR) project for the Gulf of Morbihan includes a multipolar land organisation and promotes the multiplicity of transport means 170. Urban transport plans and urban planning documents could help to reach these goals. They are supported by the Law on national commitment to the environment which provides for the integration of GHG emission reduction and energy management among the objectives of urban planning documents171. Furthermore, according to the PNR project, the park will encourage its member authorities to include future climate evolution in their reflection on urban planning and their planning projects172. Region Regional land planning and development schemes (SRADT) Such schemes establish the medium term sustainable development objectives for the region. They include a foresight analysis document and a regional charter, together with maps which illustrate the regional planning and sustainable development project. They define the main objectives in terms of the location of major facilities, infrastructures and services of public interest which should contribute to the maintenance of public service activities within the region in areas in difficulty as well as to economic projects creating investment and employment, the harmonious development of urban, peri-urban and rural areas, the rehabilitation of degraded areas and the protection and enhancement of the natural and urban environment, sites, landscapes and heritage, by taking inter-regional and

169 170 171 172

A public establishment of intercommunal cooperation, competent under PLUs. Art. 23 PNR project. Art. 14 Grenelle II Law amending article L. 121-1 of the Urban Planning Code. Art. 21.2 PNR project.

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transboundary dimensions into consideration. They ensure the consistency of projects with the policies of the State and different local authorities, where these policies relate to regional land planning and cohesion. They should be compatible with collective services schemes 173 and take into account State investment projects, as well as those of local authorities and public establishments or organisations where these projects relate to regional land planning. They include the regional transport scheme174. They may recommend the introduction of planning or environmental protection instruments, such as a master plan, a regional nature park, a territorial planning directive or a sea enhancement scheme175. State/region project contracts (CPER) CPERs provide for large projects targeting the region’s priority concerns. They have national scope and meet with the main thematic principles presented in the circular. Among the main thematic principles we find under the title “The environmental dimension of sustainable development” the theme “Response to climate change and adaptation to its effects through territorial plans comprising the promotion of renewable energies and materials and energy demand control”. The circular also includes, “over and above these major projects which shall constitute the core of the future contract”, the implementation of a territorial component which will be divided into 6 themes including “territorial climate change adaptation strategies by the promotion of renewable energies and energy demand control”176. Through the State/region project for Brittany, point 3 of major project n°6 aims to “manage energy consumption and develop renewable energies through the regional climate plan”. Department Commune The General Council’s opinion is required in the drafting and approval of the regional land planning and development scheme by the region. The conurbation project determines “the principles that the conurbation establishes in terms of economic development and social cohesion, town and country planning, transport and housing, town policy, environmental policy and resource management according to the recommendations made in the local Agendas 21 of the programme “Action 21”… and, in addition, the measures to implement these principles”177. The area and its development charter. The area is defined as a “territory [that] presents geographical, cultural, economic or social cohesion, on the scale of a population or employment catchment area”. The area development charter is a “joint sustainable development project intended to develop the assets of a given territory and reinforce reciprocal solidarity between the town or city and the rural

173 174 175

176

177

Art. 2 of Law 95-115 of 4 February 1995 on land use planning and development. Art. 14-1 of Law n° 82-1153 of 30 December 1982 on domestic transport. Article 34 Law 83-8 of 7 January 1983 on the distribution of competences between communes, departments, regions and the State – Defferre Law. Article 4251-1 CGCT opens up the possibility of interregional schemes in coastal regions. Prime Minister’s circular, n°51/37 SG of 6 March 2006 "Préparation des contrats du projets Etat-Régions 20072013 Elaboration de la stratégie de l'Etat". Dantonel-Cor (N.) "Les collectivités territoriales et l'environnement" in Bonnard (M.) (coord.), Les collectivités territoriales, Paris: La documentation française, Collection: Les notices, 2009, 254p., pp. 131-138, p. 137. Art. 23 L. 95-115 of 4 February 1995 on land use planning and development, amended.

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areas”178. Intercommunal development and planning charters. Communes can draw up and approve such charters “which define the medium term prospects of their economic, social and cultural development, determine corresponding action programmes and specify the conditions of the organisation and functioning of public equipment and services”179. The commune is competent to draw up urban planning documents: local urban plans (PLU)180 prescribing land use rules181, territorial coherence schemes (SCOT)182 adopted at intercommunal level by an EPCI (public establishment of intercommunal cooperation) and commune maps183. As mentioned above, the Grenelle I Law includes climate change adaptation as well as response to climate change among the “general land use principles”184. Furthermore, the Grenelle II Law establishes the possibility of limiting urban sprawl and preserving ecological continuity in urban planning documents. It adds to their objectives energy performance improvement, greenhouse gas emission reduction, energy management and energy production from renewable sources. We note that predictable natural risk prevention also figures among their objectives. The mayor, in the name of the commune, is competent to grant building, alteration or demolition permits185. The institution of the urban pre-emption right (DPU) is the commune’s prerogative and can be exerted in urban or urban
178 179

Art. 22 L. 95-115 of 4 February 1995 on land use planning and development, amended. Art. 5223-1 CGCT. 180 “Local urban plans present the review of economic and population predications and specify the recorded requirements in terms of economic development, agriculture, land use, environment, social balance of housing, trade, transport, equipment and services. They include a land use planning and sustainable development project (PADD) which defines the guiding principles of land use and urban planning defined for the entire commune. (...) Local urban plans comprise a regulation which determines, in cooperation with the land use planning and sustainable development project, the general rules and land use constraints which aim to fulfil the objectives outlined in article L. 121-1, which can include a construction ban, determine urban or urban development areas and natural or agricultural and forestry areas to be protected and define, according to local circumstances, the rules concerning construction (...)” Art. L.123-1 of the Urban Planning Code. 181 Faure, B. Droit des collectivités territoriales, Paris: Dalloz, collection Précis, 2009, 701p., p.518. 182 SCOTs include a prior review and a land use planning and sustainable development project (PADD) whose implementation is ensured by the definition of guiding principles and major balances. The review is “established with respect to economic and population predications and the recorded requirements in terms of economic development, agriculture, land use, environment, social balance of housing, trade, transport, equipment and services”. The PADD “determines the objectives of urban planning public policy in terms of housing, economic development, leisure activities, transport of people and goods, vehicle parking and motor traffic regulation”. “The guiding principles of land use organisation and urban area reorganisation” and the “major balances between urban areas and urban development areas and natural and agricultural or forestry areas” enable the implementation of the PADD. Furthermore, “where they include one or more coastal communes, [SCOTs] may include a separate chapter which acts as a sea enhancement scheme (...)” (Art. L. 122-1 of the Urban Planning Code). 183 “They define the sectors in which construction is authorised and the sectors in which construction is not allowed, with the exception of the adaptation, change of purpose, repair or extension of existing constructions or constructions and installations necessary for collective facilities, agricultural or forestry usage and the development of natural resources” (Art. L.124-2 of the Urban Planning Code). They can be produced for communes that have no PLU and should be approved by the Prefect (Art. L.124-1 and L.124-2 of the Urban Planning Code). 184 Art. L. 110 of the Urban Planning Code. 185 Art. L.422-1 of the Urban Planning Code. Except in communes that have no PLU or urban planning document acting as such a plan and in communes with a commune map when it has not been decided by the municipal council. In these cases the competent authority is the Prefect or mayor in the name of the State (art. L. 422-1 of the Urban Planning Code).

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development areas as defined in the PLU. Initially used for urban development reasons, its purpose has been extended to the disturbance and risk reduction policy, in particular in certain areas exposed to a natural or technological risk in the field of water and technological risks186.

2.2.2.2. Tourism Climate change will lead to a certain degree of upheaval in the tourism sector, in particular according to the evolution of summer temperatures. These changes should be foreseen so as to provide a suitable offer and prevent the problems that could emerge from these evolutions. For instance, a temperature rise in Brittany during the summer could lead to a larger number of tourists. The consequences in terms of water availability and transport sufficiency (roads and public transport) should be taken into consideration. Region • Leadership and coordination of public and private initiatives in the tourist industry187. • Definition of regional tourism development objectives through the regional land planning and development scheme, for which the implementation of this point is determined by the regional tourism and leisure development scheme188. It is drawn up by the Regional Tourism Committee189 and approved by the Regional Council190. • Competence in determining the rules for the approval or ranking procedure for tourism facilities and organisations191. • Creation of tourist offices by a commune or group of communes192. • Setting up of municipal campsites.

Department Commune

2.2.2.3. Environment Climate change will have a major impact on the environment. Temperature rise and rainfall changes will cause ecosystem evolution and environmental alteration. Support for such alterations, in particular by setting up ecological corridors, evolution monitoring and reflection on the implementation of suitable conservation strategies are at the heart of environmental protection today. These considerations must be taken into account by local authorities through their competences in this field. Region • Initiative of the creation of regional nature parks (PNR)193 • Definition of the fundamental principles of the environmental policy in the SRADT (see above) • Classification and declassification of sites as regional nature reserves194 • Possibility of contributing to the natural heritage inventory and of

186

187

188 189 190 191 192 193 194

Art. L. 211-12 and L.515-16 of the Environmental Code; Jacquot, H. and Priet, F., “Droit de l'urbanisme”, Paris: Précis Dalloz, 2008, 6th edition, 978p., p. 481s. Aubay, J.B., Auby, J.F. and Noguellou, R., "Droit des collectivités locales", Paris, PUF, Collection: Thémis droit, 2008, 379p., p. 254. Cf. art. L.131-7 of the Tourism Code. Art. L.131-3 and L.131-4 of the Tourism Code. Art. L131-7 of the Tourism Code. Aubay, J.B., Auby, J.F. and Noguellou, R., "Droit des collectivités locales", op.cit., p. 254. Art. L.133-1, L.133-2 and L.134-4 of the Tourism Code. Art. 333-1s. Environmental Code. Art. L. 332-3 of the Environmental Code.

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conducting local inventories195 • Definition of a local Agenda 21 (territorial sustainable development project)196. • The regional ecological coherence scheme is defined in the Grenelle II Law. It is a framework document whose aim is the conservation and restoration of ecological continuity. It is “jointly produced, updated and monitored by the region and the State in association with a regional ‘green and blue belt’ committee created in each region. This committee includes all the departments within the region as well as representatives of groups of communes competent in terms of land use or urban planning, the communes concerned, national parks, regional nature parks, approved environmental protection associations concerned and interested socioprofessional partners. Its composition and functioning are determined by decree”197. The draft regional ecological coherence scheme undergoes a consultation process among the relevant local authorities and a public enquiry. It is then deliberated by the Regional Council and adopted by decree by the State representative in the region 198. “Local authorities and their competent associations in terms of land use and urban planning take into account regional ecological coherence schemes during the drafting or revision of their land use or urban planning documents”199. In the same way as for territorial climate-energy plans, the impact of these schemes remains limited as the urban planning documents need only take them into account and need not be compatible with them. • Regional climate, air and energy schemes (see above). Examples: The region of Brittany has developed a local Agenda 21. Point III.2.3 aims to: “Apply to Brittany the foresight investigation into biodiversity, climate change and the necessary adaptations via the Sustainable Development Resource Centre (CRDD). Adaptation strategies Anticipate the effects of climate change (identification of risk areas and scenarios, erosion, flooding, freshwater inundation). * Conduct a study on anthropogenic causes (urbanisation and the resulting water infiltration, hollowing of coastal paths…) of the physical fragility of certain coastal sectors, with mapping of risk areas and formalisation of recommendations. * Prepare adaptation measures to coastal flooding for urban areas located at high sea level, whether protected or not: strategic retreat, new defences, awarenessraising among public (obligations...) and private players”. The Gulf of Morbihan PNR charter project:

195

196

197 198 199

Art. L.411-5 of the Environmental Code introduced by art. 109 of Law 2002-276 of 27 February 2002 on the democracy of proximity, JORF of 28 February 2002 page 3808. Art. L. 110-1 and L. 229-6 of the Environmental Code, the Grenelle II Law integrating local Agendas 21 in the legislative provisions. Art. L. 371-3 of the Environmental Code. Ibid. Ibid.

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The project describes how the PNR proposes to contribute to climate change adaptation (see below). Department • Establishment and implementation of a protection, management and public opening policy for sensitive natural sites, wooded or not, in order to preserve the quality of natural sites, landscapes, environments, and flood plains and to conserve natural habitats. Tools: departmental sensitive natural area tax, a special pre-emption right exerted on predefined areas200. • Establish a departmental plan of walking itineraries (following consultation of interested communes)201 and a plan for motorised itineraries whose creation and maintenance are the department’s responsibility202. • Definition of a local Agenda 21 (territorial sustainable development project)203. • Wastewater treatment. Within this framework, communes must establish a collective wastewater treatment plan by the end of 2013204. • Intervention of the mayor through his general police powers (pollution )205. • The integration of environmental objectives in urban planning documents such as the preservation and restoration of ecological continuity (see above). • Definition of a local Agenda 21 (territorial sustainable development project)206.

Commune

2.2.2.4. Economic aid Through their business aid207, local authorities may direct investments and business evolutions towards greater adaptation to the expected impact of climate change. Region • Economic development is the region’s main field of action. It “coordinates on its territory the economic development actions of local authorities and their associations”208. • Business aid: service provision, subsidies, interest rate subsidies, loans,

200

201 202 203

204 205

206

207 208

Art. L. and R. 142 of the Urban Planning Code; Becet, J-M., "Le droit de l'urbanisme littoral", Rennes: Presses Universitaires de Rennes, Collection Didact droit, 2002, 254p., p. 95; Dantonel-Cor, N., "Les collectivités territoriales et l'environnement", in Bonnard, Maryvonne (coord.) "Les collectivités territoriales", Paris: La documentation française, Collection notices, 2002, 254p., p. 132. Art. L. 361-1 of the Environmental Code. Dantonel-Cor, N., "Les collectivités territoriales et l'environnement", op.cit., p. 132. Art. L. 110-1 and L. 229-6 of the Environmental Code, the Grenelle II Law integrating local Agendas 21 in the legislative provisions. Art. L. 2224-8 CGCT. Art. L. 2212-1 and onwards of the CGCT and especially art. 2212-2 5° including for municipal police “The duty to prevent, by appropriate precautions, and stop, by providing the necessary assistance, accidents and disastrous events as well as all types of pollution, such as fires, flooding, seawall ruptures, earthquakes or rock fall, avalanches or other natural disasters, epidemics or contagious disease outbreaks, epizootics, to provide all emergency assistance and response measures and, where relevant, to seek the intervention of higher administration”. Art. L. 110-1 and L. 229-6 of the Environmental Code, the Grenelle II Law integrating local Agendas 21 in the legislative provisions. Provisions codified in articles L.1511-1 s CGCT. L 13 August 2004 art. 1511-1 CGCT

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• •

• • •

interest-free or low-interest repayable advances. By law, the Regional Council alone is responsible for defining the organisation and granting access to such initiatives209. Other local authorities can contribute to the funding of such initiatives or implement their own aid project or system with the agreement of the region 210. In several cases, the Council of State has been known to deem unlawful direct aid granted by local authorities (commune or department) which was not granted as a complement to regional aid211. Contribution to company capital212, provision of a loan guarantee or surety213. Definition and granting of economic business aid initiatives. The region is also responsible for establishing a report on aid and aid systems implemented during the calendar year by local authorities and their associations214. Development of a five-year regional economic development scheme (SRDE), following consultation with departments, communes and their associations, on an experimental basis, so as to coordinate economic development actions, promote balanced economic development within the region and boost the area’s attractiveness. All regions have adopted this scheme. Granting of aid for the renewal and modernisation of the coastal fishing fleet and marine culture businesses215. No particular competence in terms of industrial policies. However, certain regions have set up technical support services or aid mechanisms for different types of industrial activities. Organisation of consultation with executives of local authorities and their associations within the region, in the case of impairment to the economic balance of all or part of the region (initiative of the President of the Regional Council)216.

Department

• Participation in the funding of business aid initiatives defined by the Regional Council, within the framework of a convention with the region. • Introduction of its own aid system, with the agreement of the region. • Business property aid217. • A convention may be signed between the State and a local authority other than the region or an association in addition to the aid initiatives or systems mentioned in articles L.1511-2 and L.1511-3 CGCT. • Establishment of a rural equipment aid programme218. • Participation in the funding of regional actions upon agreement with the region219.

Commune

209 210

211

212 213 214 215 216 217 218

Art. 1511-2 CGCT. Tulard, M-J., "Les compétences de la région", in Bonnard, Maryvonne (coord.) "Les collectivités territoriales", op. cit., pp. 99-109, p. 102 CE 6 June 1986 dep. De la côte d'or; CE 1° October 1993, Vitrolles; Demazière, C., "Le développement économique local", in Bonnard, Maryvonne (coord.) "Les collectivités territoriales", op. cit., pp. 143-150, p. 145. Art. L.4253-3 CGCT. Art. L.4253-1 CGCT. Art. 1511-1s CGCT L. 83-663, 22 July 1983, art. 11 Tulard, M-J., "Les compétences de la région", op. cit., p. 101. Art. 1511-3 CGCT. Art. L.3232-1 CGCT.

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• Implementation of actions under conventions concluded with the State220. • Implementation of own actions with the agreement of the region221. • Development with other communes of an intercommunal development and planning charter222. • In the rural environment, the commune may: • adopt a rural equipment aid programme • conduct any actions for the maintenance of services required to meet inhabitants’ needs. 2.2.2.5. Transport and networks: equipment The question of equipment and in particular transport should take into account future evolutions due to climate change. What impacts could a temperature rise have on these infrastructures? What will be the impact of the sea level rise and erosion on these networks, and on sea and river ports? How would these needs evolve if a high carbon tax was introduced? Region • Development of the “Regional infrastructure and transport scheme” which coordinates passenger and freight transport. This is the transport section (passengers and freight) of the SRADT. It aims to ensure the regional and interregional consistency of major traffic routes and their functionality through a multimodal approach, and to define priority actions for road infrastructures223. • Organisation of non-urban passenger road transport services and, since 1st January 2002, the region is the authority in charge of organising regional rail transport224. • Development of a regional passenger transport scheme which, with the departmental scheme, determines passenger transport aid mechanisms. • Creation, equipment and operation of commercial sea ports 225 and planning and operation of commercial and fishing sea ports transferred to its responsibility in compliance with Law n° 2004-809 of 13 August 2004 on local liberties and responsibilities226. • Development of a departmental passenger transport scheme which, with the regional scheme, determines passenger transport aid mechanisms. • Maintenance and investment costs for departmental roads and, since the Law of 13 August 2004, for part227 of national roads (infrastructure construction, planning, maintenance and operation). • Organisation of non-urban passenger road transport and school transport (responsibility, organisation and functioning of school

Department

219 220 221 222 223

224

225 226 227

Art. L. 1511-2 CGCT and L.1511-3 CGCT. Art. 1511-5 CGCT. Art. 1511-2 CGCT. Becet, J-M., "Le droit de l'urbanisme littoral", op. cit., p. 95. Art. 17 of the Law 2004-809 of 13 August 2004 on local liberties and responsibilities, JORF n°190 of 17 August 2004 page 14545; Tulard, M-J., "Les compétences de la région" op. cit., p. 104. Art. 124 Law 2000-1208 of 13 December 2000 on urban solidarity and renewal, JORF n°289 of 14 December 2000 page 19777. Art. 601-1 of the Maritime Ports Code. Ibid. Two thirds.

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• • •

transport), outside of the urban transport sector228. Creation, equipment and management of maritime fishing ports. Existing departmental ports can, upon request by the department and upon agreement by the General Council, be transferred to the region, and the department can, upon request by a commune or community of communes, create, equip and operate a maritime port whose main activity is pleasure boating229. Conventions for the transfer to local authorities of non-autonomous maritime ports under the State’s responsibility have been provided for. In 2007, transfer conventions were signed for 19 ports of national interest. Four were at department level: Finistère for the port of Concarneau, Charente Maritime for the fishing port of La Rochelle, Alpes Maritimes for the port of Nice and Var for the port of Toulon230. Creation and operation of non-urban rail or tracked transport infrastructures subject to missions entrusted to the public establishment “Réseau Ferré de France”231. Organisation of regular public maritime passenger and freight transport for island services232. Planning, maintenance and operation of State-owned non-navigable waterways, canals, lakes and water bodies transferred to its responsibility upon its own request233.

Commune

• Urban transport plans • Urban transport234 • Maritime ports: “Communes or, where relevant, communities of communities, urban communities or conurbation communities, are competent to create, equip and operate maritime ports whose main activity is pleasure boating. They are also competent to equip and operate the commercial and fishing ports transferred to them”235. • Island services where the island belongs to a continental commune (otherwise, competence of the department)236. • Roads: communal roads237 and rural paths238 (classification, maintenance ). • Creation, equipment and operation of inland ports. • Water purification239 and supply240. • Electricity supply, management of development work on public electricity supply networks241. • Gas supply242.

228 229 230 231 232 233 234

235 236 237 238 239 240 241 242

Art. 29 L.82-1153, 30 December 1982 on domestic transport (LOTI Law). Becet, J-M., "Le droit de l'urbanisme littoral", op. cit., p. 95. Becet, J-M., "Le droit de l'urbanisme littoral", op. cit., p. 96. Art. 33 of the Law of 13 August 2004. Art. 48-1 of Law n°82-1153 of 30 December 1982 on domestic transport, known as LOTI. Art. 26 L. 2 February 1995. L. n° 82-1153, 30 Dec. 1982, on domestic transport, "LOTI": Journal Officiel 31 December 1982. – D. n° 85-891, 16 August 1985: Journal Officiel 23 August 1985. Art. 601-1 of the Maritime Ports Code; Becet, J-M., Le droit de l'urbanisme littoral, op. cit., p. 80. Art. 48-1 of Law n°82-1153 of 30 December 1982 on domestic transport, known as LOTI. Art. 141-1 of the Code de la voirie routière. Art. 161-1 of the Code de la voirie routière. Art. L.2224-8 CGCT. Art. 2224-7-1 CGCT. Art. L. 224-31 to L. 2224-35 CGCT, from L. n° 2000-108, 10 Feb. 2000. Art. L. 2224-31 CGCT.

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Details on the transfer of sea ports, civil airfields, navigable waterways and inland ports are provided in Appendix I.

2.2.2.6. Housing and building Climate change will necessitate the evolution of buildings, providing better insulation to ensure what is referred to as summer comfort while avoiding the use of air conditioning. Meanwhile, these measures will also lead to a drop in CO2 consumption and it is often from this angle that they are presented. In the field of energy consumption management, local authorities are in charge of the construction and maintenance of many buildings for which they can apply technical standards using “quality” approaches such as the high environmental quality (HQE) construction standard and the EcoManagement and Audit Scheme (EMAS)243 or ISO 14 001. Since 2004, the Public Procurement Code enables the use of environmental criteria in the terms of Government procurement contracts244. The PNR project states that “Communities within the Park’s mixed union agree to set an example, encouraging new practices and new behaviours. The Park supports local authorities in investment choices targeting carbon neutrality”245. It mentions “overall recognition of High Environmental Quality in new and existing buildings”246. All local authorities or associations, upon request, may obtain ownership of listed or registered buildings, and the objects within them, belonging to the State or the Centre des monuments nationaux and featured on a list established by decree by the Council of State. The Grenelle II Law largely addresses the question of energy performance in new buildings as well as in renovation; a whole chapter of the Law is dedicated to this issue. Particular attention should be paid to the creation of an obligation to conduct improvement work in existing tertiary sector buildings or buildings in which a public service activity takes place by 2020247. Region • The construction, reconstruction, extension, major repairs, equipment and functioning of high schools, special education establishments and

Dantonel-Cor, N., Droit des collectivités territoriales, Rosny sous Bois, Bréal collection: Lexifac droit, 3rd edition, 2007, 288p., p. 248. 243 Regulation (EC) n° 761/2001 of the European Parliament and of the Council of 19 March 2001 allowing voluntary participation by organisations in a Community eco-management and audit scheme (EMAS) ECOJ L 114 of 24.4.2001, p. 1–29. 244 Article 5 I paragraph 1 of the Public Procurement Code (2006 edition) "The nature and extent of the needs to be satisfied are accurately determined before competitive bidding is launched or before all negotiation that is not preceded by a call for bids, taking into account sustainable development objectives (…) ". Inserguet-Brisset V. and Inserguet J.F "Les approches volontaires et les collectivités locales" pp. 293-308 in HervéFournereau N. (Dir.), 2008, Les approches volontaires et le droit de l'environnement, Rennes, Presses Universitaires de Rennes, Collection L’Univers des normes, 326p. 245 Article 21.1.1 of the PNR project. 246 Article 21.1.2 of the PNR project. 247 Article L.111-10-3 of the Construction and Housing Code: “Energy performance improvement work shall be conducted in existing buildings for tertiary use or in which a public service activity takes place within a period of eight years from 1st January 2012. A Council of State Order determines the nature and conditions of this obligation, in particular the thermal characteristics or energy performance to be attained, taking into consideration the building’s initial condition and purpose, exceptional technical constraints, disabled access and requirements related to the conservation of historical heritage. It also specifies the terms and conditions by which the application of this obligation is controlled and which are appended to sale and rental contracts”.

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professional maritime schools. Since the Law of 13 August 2004, the region can claim ownership of these buildings, either automatically for those that it was responsible for building or rebuilding, or with the agreement of the communes, associations or communes or departments which were the previous owners. • The possibility of conducting a four-year trial, up to one year after the entry into force of the 2004 Law, on credit management for the maintenance and restoration of listed or registered heritage, not belonging to the State or its public establishments. • The possibility of conducting an aid programme to improve housing quality in existing neighbourhoods and accommodation, to save energy and to promote the use of renewable energies248. Department • In terms of housing aid, the Law of 13 August 2004 introduced the creation of a department-funded housing solidarity fund in each department. • The construction, reconstruction, extension, major repairs, equipment and functioning of middle schools249.Since the Law of 13 August 2004, ownership of middle school property has been transferred to the department, automatically where the property was State-owned and following the agreement of communes or groups of communes where they were the previous owners250. • Departmental plan for housing the underprivileged. The Grenelle II Law specifies that it includes measures intended to take action against energy insecurity251. • The Law of 13 August 2004 enabled the department, as with the region, to conduct a four-year trial, up to one year after the entry into force of the 2004 Law, on credit management for the maintenance and restoration of listed or registered heritage, that does not belong to the State or its public establishments. • The Law of 13 August 2004 states that the Prefect can, while retaining control over the system, delegate all or part of the State social housing reservation quota, in accordance with the departmental plan for housing the underprivileged252. The Law also creates a procedure for the delegation to local authorities and their associations of the public housing aid253 competence which takes the form of a six-year convention.”254 • Credits for unprotected rural heritage conservation are transferred to the

248

249 250

251 252

253 254

Art. 76 to 80 of the Defferre Law (Law n°83-8 of 7 January 1983 on the distribution of competences between communes, departments, regions and the State); Tulard, M-J., "Les compétences de la région", op. cit., p. 107). Art. L.213-2 paragraph 2 Code of Education. Art. 79 ; Becet, J.M., "Les compétences du département", in Bonnard (M.) (coord.), Les collectivités territoriales, op.cit., pp. 91-97, p. 94. Art. 11 of the Grenelle II Law amending article 2 of Law n° 90-449 of 31 May 1990. Aubay, J.B., Auby, J.F. and Noguellou, R., "Droit des collectivités locales", op. cit., p. 250; D. n°2005-212 of 2 March 2005. Art. L.301-3s of the Construction and Housing Code. Aubay, J.B., Auby, J.F. and Noguellou, R.,"Droit des collectivités locales", op. cit., p. 250.

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departments255. • Creation and management of departmental lending libraries, departmental archives and museums, through their cultural constituent256. • Commune • The possibility of defining a local housing programme defining the principles and objectives of a policy aiming in particular to fulfil housing and accommodation needs, to promote urban renewal and social diversity. These objectives and principles take into account the need to control urban sprawl257. • Social housing “Communes and their associations ‘should, through their contribution towards property, through the development actions or operations they conduct or authorise in accordance with article L. 300-1 of the Urban Planning Code or by property subsidies, enable the creation of rental social housing necessary for the social diversity of towns and neighbourhoods”258. Communes can conduct actions in this sector through public housing offices or public development and construction offices. o Delegation of housing aid: under certain conditions, housing aid management can be delegated to local authorities and their associations, to promote the construction, acquisition, rehabilitation and demolition of rental social housing, as well as to promote the renovation of privately owned housing259. o Communal housing estate; concerted development zones. o Possibility of managing Prefecture social housing quotas”260. o Possibility of managing student accommodation261. • The commune may request, on a trial basis and for a four-year period responsibility for the health and hygiene in housing policy (if it has a communal health and hygiene service)262. • Primary and nursery schools. The commune decides on their creation and location with the responsibility of ensuring their construction, maintenance and functioning263. • Low energy housing eco-neighbourhood initiative264. • The Law of 13 August 2004 states that ownership of certain listed buildings may be transferred to communes or other local authorities upon request.
255

256 257

258 259 260 261

262 263

264

Law of 27 February 2002, "the department receives – rather low – credits from the State allocated to the conservation of unprotected rural heritage, i.e. non-listed, non-registered buildings, yet characteristic of local identity” Faure, B., "Droit des collectivités territoriales", Paris: Dalloz, Collection Précis droit public, 4th edition, 2009, 701p., p. 527. Faure, B., "Droit des collectivités territoriales", op. cit., p. 527. Art. L.302-1 of the Construction and Housing Code; Ferstenbert, J. et al., "Droit des collectivités territoriales", Paris: Dalloz, 2009, Collection Hypercours, 756p., p. 482s. Art. L. 2254-1 CGCT. Art. 61 of Law 13 August 2004, amending article L. 301-3 of the Construction and Housing Code Art. L. 441-1 CCH, Dantonel-Cor, N., Droit des collectivités territoriales, op. cit. Art. 66 of the Law of 13 August 2004 “construction, reconstruction, extension, major repairs and equipment of premises intended for student accommodation” codified in Art. 822-1 of the Code of Education. Art. 74 L. 13 August 2004. On a trial basis, a public primary teaching establishment can be created between several communes (art. 86 L. 13 August 2004). Dantonel-Cor, N., "Les collectivités territoriales et l'environnement", op.cit., p. 133.

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Possibility of taking on the responsibility of many cultural and sporting activities (libraries, gymnasiums, theatres…) and being in charge of their buildings.

2.2.2.7. The general competence clause While many laws allocate defined competences to a given administrative level (region, department, communes), another legislative provision, the so-called “general competence clause”, enables local authorities to seize subjects for which they do not have absolute jurisdiction: “each local authority is committed to acting to satisfy a local public interest and to fulfil the collective needs of inhabitants as long as the resolution of these public interest issues has not been assigned by law to the State or other public entities”265. This clause completes local authorities' action capacity, especially in new fields such as climate change. It enables the development of their initiative. We can make mention for instance of the charter of Breton coastal areas. The charter of Breton coastal areas Among the seven major goals identified in this charter, climate change features in 6th position (although there is no apparent order of priority). This issue is described as follows: “Anticipating and adapting to the effects of climate change in coastal areas. The shoreline is home to a large part of Brittany’s population and economic activities. Without slackening efforts towards greenhouse gas emission reduction, the consequences of climate change on our coasts must be predicated and anticipated. This will enable better assessment of the risks and the economic, ecological yet also social consequences and the consideration of adaptation measures.” Contrary to the examples of territorial climate plans, here adaptation is perceived as of primary importance. Yet, while each of the other goals is transcribed into at least one key action, this is not the case for climate change: Goals Key actions 1. To promote the full potential of Brittany's 1. Reinforce Brittany’s maritime ambition maritime asset by developing a diversified 2. Apply a sustainability approach to maritime economy centred on innovation and sustainable and coastal activities. development. 3. Promote sustainable tourism and nautical activities. 2. To manage urban development and promote 4. Manage urban development and promote new social diversity on the shoreline. forms of urban development, architecture and traffic systems on the shoreline. 3. To preserve natural heritage and maintain the 5. Improve the preservation and enhancement of ecological potential of Breton coastal areas. natural heritage in coastal areas. 6. Guarantee the quality of coastal landscapes. 4. To restore the quality of coastal water bodies 7. Accelerate the restoration of coastal water and reduce shoreline pollution. quality. 8. Improve coastal lifesaving and environmental risk management. 5. To preserve and promote maritime cultural 9. Guarantee the preservation and promotion of heritage. maritime cultural heritage.
265

Articles L. 1111-2, L. 2121-29, L. 3211-21, L. 4221-1 of the General Code of Local Authorities. See also Council of State of 29 June 2001, Commune de Mons-en-Baroeul, AJDA 2002, p. 42. Inserguet-Brisset V. and Inserguet J.F "Les approches volontaires et les collectivités locales" op. cit.

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7. To preserve the social, ecological and 10. Implement a sustainable economic potential of Breton islands. strategy for the Breton islands. 6. To anticipate and adapt to the effects of climate change in coastal areas.

development

This is all the more surprising as the charter report emphasises the importance of this issue especially for Brittany, and gives rather accurate recommendations for adaptation measures to be implemented. Yet it seems that while climate change was identified, no concrete action emerged from discussions during the consultation. These discussions were held in autumn 2007, just before the subject of climate change began to gain ground in France (see below)266. Climate change is only mentioned as part of key action “5. Improve the preservation and enhancement of natural heritage in coastal areas.”: “Initiate reflection on the effects of climate change and the measures to be taken in the Breton coastal area” in the form of a list of ten other elements. The charter report more fully develops the question raised by the issue of climate change: The expected and current effects are as follows: “Coastal areas are particularly exposed. The natural phenomena with which they are already confronted (coastal erosion, seawater intrusion into fresh water aquifers, submersion and flooding) will be amplified due to the rise in sea level and the increased frequency and severity of extreme weather events (storms, heavy precipitation, drought and heat waves etc.). Climate change also results in a rise in sea surface temperature, physicochemical alterations to seawater (salinity and acidity), wave regimes and marine current systems. [box: “At least 20% of Breton coasts are being eroded and around 65% of threatened coasts have heritage value (EROCOVUL programme, Erosion and vulnerability of Brittany’s coastline, 20012004)”]. Brittany will not escape from these consequences. The sea level rise will result in the degradation and disappearance of certain shores. Given the presence of a large part of the Breton population along the coast (40% of the Breton population live on the coast, 18% of which live in areas more or less directly affected by coastal erosion), as well as essential features for the regional economy (most economic areas are on the shoreline, as well as the main urban hubs), and a very rich cultural heritage, the consequences for our society are likely to be severe. The temperature rise and physicochemical alteration of seawater will result in a change in species composition: some species will disappear while others will appear. Maritime activities, in particular fisheries and shellfish farming, but also tourism, will be most affected. [box: The sectors subject to severe coastal erosion represent 20% of manmade areas (mainly urban) in Morbihan, 28% in Finistère and over 35% in Côtes d'Armor (IFEN, dossier n°7, 2007).]” The adaptation measures envisaged are specified: Research so as to “more effectively manage the causes and determine the effects of climate change, and identify the areas most at threat. It is also important to assess the consequences on residential areas, the regional economy and marine and coastal biodiversity. (…) A monitoring programme and tools to support public decision-making should be implemented, as well as disaster response and management programmes.” The integration of climate change in coastal planning policies including from a point of view of safety “New, appropriate coastal planning policies should be introduced. The main difficulty is in terms of risk areas in which populations are settled or are liable to settle, due to pressure on the
266

Interview with Stéphane Pennanguer, project manager for the Region of Brittany, in charge of the charter of Breton coastal areas.

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property market caused by the residential, tourism and economic appeal of coastal areas. The possibility of implementing strategic retreat or of protecting certain coastal areas from urbanisation and development should be considered. The safety problem should also be considered in all planning tools, in particular through Risk Prevention Plans. Strategic actions on climate change should be conducted to mobilise local authorities to develop response means and take into account public interest obligations in their land planning choices”. The choice of measures which will be adopted by local authorities will be determined by the issues they have identified for their territory. We note however that this general competence clause has been rebuked for many years as a grey area in the distribution of competences between local authorities. The bill on the local authority reform currently under discussion could lead to its withdrawal for the region and the department. However the Senate strongly opposed, removing this provision from the bill. The outcome of discussions on this provision today remains uncertain. Having assessed the competences that may be mobilised by the State and local authorities for climate change adaptation, it is clear that this issue requires integrated management. Climate change adaptation requires many public policies to be reviewed according to its possible consequences. It is therefore clear that this is a true challenge for ICZM. This management strategy must be able to adapt. One of its founding principles, as defined by the European recommendation on ICZM is indeed “adaptive management during a gradual process which will facilitate adjustment as problems and knowledge develop (…)”267. Can ICZM integrate this new issue of climate change? Practice shows that this integration is underway. We will now analyse how this is being done.

267

Recommendation of the European Parliament and of the Council of 30 May 2002 concerning the implementation of Integrated Coastal Zone Management in Europe (2002/413/EC), Official Journal n° L 148 of 06/06/2002 p. 0024 – 0027.

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2.3. Development of integrated coastal zone management comprising climate change
As a truly global issue, climate change has only recently entered into the sphere of local authorities’ concerns. Feedback from pioneer authorities has promoted the integration of the question of climate into local public policy by knowledge development. Experiments have been compiled, analysed and imitated. This groundwork has enabled local authorities to comprehend this issue, creating a favourable context for launching action, reinforced by the strong focus on climate change in 2007268. 2.3.1. Local pilot experiments: knowledge development In the early 2000s, a few pilot initiatives appeared locally. They aim to show local authorities’ capacity to take action on climate change. The European Commission has promoted such initiatives, in particular by funding Life-Environment demonstration projects. Within this framework, the “Privilege” programme (Cities program for greenhouse gas reduction) which began in 2002, made Chalon-sur-Saône a pilot city for climate change. The aim was to demonstrate that it was possible to reduce GHG emissions more rapidly than required by the Kyoto Protocol. This initiative, for instance, showed that this question was not restricted to national and international level, and provided a concrete representation of the actions that can be taken on a local scale269. These initiatives began to multiply from 2005, following the first national climate plan 270. Adopted in 2004, this plan involves local authorities, encouraging use of their initiative through territorial climate plans. Networks have opened up to the question of climate change or formed around it through associations such as RAC France (Réseau Action Climat France) 271, local authorities themselves with Énergie-cité272 or the network RARE (network of regional energy and environment agencies) set up by the Regional Councils 273, the State and national public organisations with “climate and territory” workshops274, actions of the ADEME (Environment and Energy Management Agency) or the ViTeCC club (cities, territories and climate change)275. They provide methodological information, “good practices” and feedback. Similarly, when the MIES (Interministerial Mission on the Greenhouse Effect) published its first review of experiences of territorial climate plans in December 2007, it chose 21 plans, in a bid to promote similar initiatives276.
268

269 270

271 272 273 274 275

276

This part is largely taken from the following article: Queffelec, B,. L'intégration des changements climatiques dans les politiques publiques locales : Le cas du golfe du Morbihan, Paru dans VertigO - la revue électronique en sciences de l'environnement, Hors série 6 | 2009, available at the following address: http://vertigo.revues.org/9015. See http://www.programme-privileges.org/ See MIES, 2007, "Plans Climats Territoriaux : des territoires en action - 21 collectivités engagées dans la relève du défi climatique - 1er recueil d'expériences", 67p. Previously, a national climate change response programme was adopted in 2000. It already addressed “territorial attachment (…) of response to the greenhouse effect” whose main instrument resided in the integration of this issue in State-Region plan contracts (see also the Circular of 27 August 1999 of the Minister of Land Planning and the Environment to the Regional Prefects on the preparation of future State-Region plan contracts and the incorporation of the greenhouse effect). See http://www.rac-f.org/ See http://www.energie-cites.eu/ See http://www.rare.asso.fr/index.htm Anticipated in the Climate Plan. The Climate Mission of the Caisse des Dépôts, centre of expertise on the economy of climate change, the National Observatory of the Effects of Global Warming (ONERC), the division of the Ministry of Ecology, Energy, Development and Land Planning in charge of climate change adaptation questions and Météo France joined forces to launch this network. See http://www.aprec.net/vitecc.php MIES, 2007, "Plans Climats Territoriaux : des territoires en action - 21 collectivités engagées dans la relève du défi

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By drawing upon past experience, know-how in the sense of a “set of accumulated knowledge, experiences and techniques (...)”277 jointly constructed with different local authorities can be passed on. In the face of the vast range of possible measures and the lack of direction from the State, these compilations of experiences enabled local authorities to apply the question to their local scale and obtain concrete answers to climate change questions. They adapt these answers according to their own context. In the Gulf of Morbihan, the SIAGM held a day of study on energy and climate, resulting in the integration of climate change in the PNR project. This day was organised as part of the Mairieconseil network under the Caisse des dépôts et consignations278. The groundwork involved in the development and diffusion of this knowledge was legitimated and local authorities’ will to act was reinforced by considerable media attention on climate change in 2007. Climate concerns in the limelight: 2007 reification of the issue In July 2007, the French Government published its national climate change adaptation strategy 279. Meanwhile, it launched a wide national consultation process on the environment which generated many debates and public discussions. This “Grenelle Environment Round Table”, held from July to October, ranked climate change among the major concerns. Through several other public events in 2007, this theme took centre stage. The existence of climate change and its severity was scientifically confirmed in the fourth IPCC (Intergovernmental Panel on Climate Change) report issued in 2007. The exceptional scope of this work for humanity was rewarded by the Nobel Peace Prize jointly awarded to the IPCC and the former US Vice President Al Gore, author of the film “An Inconvenient Truth”, for their action in the field of climate change, in October 2007. The exorbitant cost of inaction, revealed by the economist Nicholas Stern in his report to the UK Government published on 30 October 2006 280, triggered heated debates and controversy upon its release and throughout 2007281. The convergence of these international and national events provided climate change with vast media coverage. It made the year 2007 a transitional period in awareness-raising and the desire to take concrete action to preserve the climate and adapt to the effects of climate change. This emphasis continued into the following years as negotiations took place over the climate and energy package within the European Union and preparatory meetings were held for the 2009 Copenhagen conference. On a local scale, the number of territorial climate plans began to rise from this time. By February 2009, 169 plans had been initiated282. In the Gulf of Morbihan, climate change truly appeared in public policy with the 2008 version of the PNR project. It considered this issue to be a major concern. The Sea Enhancement Scheme for the Gulf of Morbihan adopted in April 2006 barely mentioned climate change, much like the version of 23 March 2006 of the PNR project which did not consider it to be a major issue either. Yet it raised the question from a point of view of energy management 283.
277 278 279

280

281

282

283

climatique - 1er recueil d'expériences", op. cit. Le nouveau petit robert de la langue française, Paris, Editions Le Robert, 2009, 2837p. See http://www.mairieconseils.net ONERC, 2007, "Stratégie nationale d'adaptation aux changements climatiques" Paris: La documentation française, 96p. Stern N. (dir.), 2006, The Stern Review Report: The Economics of Climate Change. London, HM Treasury, 30 October, 603 p. Godard, O., 2007, "Climat et générations futures - Un examen critique du débat académique suscité par le Rapport Stern", Cahiers de la chaire du développement durable (polytechnique), DDX-07-12, 35p. See http://www.projetdeterritoire.com/index.php/Espaces-thematiques/Energie-Environnement/Actualites/169plans-climat-territoriaux-en-projet Articles 8, 8.1 and 13.3 of the PNR project 2006.

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Article 8 entitled “contributing to the control of matter and energy flows” explicitly mentions “the necessary limitation of greenhouse gas emissions (Kyoto Protocol) mainly due to the use of fossil energy resources, [...]”. For the region of Brittany, climate change appears in several public policy guidance documents. They figure in the charter of coastal areas (November 2007), in the Agenda 21 (May 2008) and the energy plan for Brittany subtitled “an ambition and a strategy to meet the energy and climate challenge” (July 2007). The shift from 2007 towards the integration of climate concerns in public policy is clearly demonstrated in the Gulf of Morbihan and more widely in Brittany. This issue is represented on a local scale. Yet how can local authorities take on this task, take part in GHG emission reduction and adapt to climate change? Local actions are developed according to the tools and competences available to local authorities as well as on the basis of a strategic analysis identifying the local challenges. 2.3.2. Development of local action in terms of climate change Local authorities have many competences which enable them to tackle the issue of climate change 284 . In order to coordinate the implementation of these competences, they can organise their action in particular through territorial climate plans. The choice of measures adopted by local authorities depends on the identification of local challenges related to climate change. 2.3.2.1. Legal instruments for the development of integrated coastal management comprising climate change prospects All the measures and strategies adopted by a local authority in terms of climate change are often integrated in a text defining their objectives, such as an Agenda 21 with a section on climate 285 or a territorial climate plan. Initially, these legal instruments, although considered “contractual”, only committed parties politically. They did not create a binding legal obligation. Today, the framework formed by the Grenelle II Law will generalise territorial climate-energy plans (see above) while recognising the background and need to integrate sustainable development implementation tools by allowing this plan to be a section of an Agenda 21286. This law makes it mandatory for all local authorities with a population of over 50,000 inhabitants to have a territorial climate-energy plan 287. Nevertheless, the provisions which will be adopted through territorial climate-energy plans should not be very restrictive. The law is limited to specifying that territorial coherence schemes (SCOT) and PLUs, which are urban planning documents, should only “take into account” territorial climate plans (see above). The provisions adopted through a PNR are more restrictive: “urban planning documents should be compatible with the strategies and measures of the charter” 288 for a PNR. However, this restrictive character remains limited. The PNR charters are not effective against third parties (CE 2 April 1993, Vial req. N°79507; CE 27 February 2004 Centre régional de la propriété foncière de Loraine-Alsace et al., req. 198124). For their implementation, as highlighted by the Council of State, it is up to the “interested local public authorities to take measures and conduct actions to ensure that the objectives of this charter are met and to apply the competences they are allocated by different legislations, in as far as they confer discretion, in a bid for consistency, which is a condition of their
284 285

286 287

288

See above. The Circular of the Ministry of Ecology and Sustainable Development of 13 July 2006 defines a frame of reference for the elaboration of Agendas 21; it identifies “response to climate change and protection of the atmosphere” as one of the five objectives of sustainable development. Art L. 129-26-1 of the Environmental Code. Art. 75 Grenelle II Law “(...) Art. L. 229-26. – I. [of the Environmental Code] – The regions and Corsican local authorities, if they have not integrated it in the regional climate, air and energy scheme mentioned in article L. 2221, departments, urban communities, conurbation authorities as well as communes and communities of communes of over 50,000 inhabitants shall have adopted a territorial climate-energy plan by 31 December 2012 (...)”. Article L.333-1 5th paragraph of the Environmental Code.

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legality” (CE 15 Nov. 2006, Synd mixte du PNR de la montagne de Reims, req. 291056 )289. Furthermore, it will be interesting to observe how strategic coastal documents, a creation under the Grenelle Laws, responsible for defining the objectives of integrated sea and coastal management and the corresponding provisions for each seafront, will incorporate climate change adaptation290. 2.3.2.2. Definition of local climate change issues Initially, we may imagine that local authorities would not feel greatly concerned by actions aiming to reduce GHG emissions. These actions involve major investments and in the face of conflicting interests on this issue at international level, they could be perceived as a drop in the ocean. The question of adaptation, however, appears to be closer to local concerns. It involves foresight into the area’s future situation and leads to the adoption of concrete measures to prepare for future changes. However, the provisions adopted on a local level mainly relate to GHG emission reduction rather than adaptation. Several causes have lead to the underestimation of the theme of climate change adaptation. The refusal to anticipate the failure of actions to reduce GHG emissions may have impaired the legitimacy of this action291. On a local scale, uncertainty at least over the scope of climate change and its expected effects remains high. These doubts make the selection of adaptation measures to be adopted difficult, as their efficiency is determined by many uncontrolled factors 292. On the other hand, the reduction of GHG emissions has been simplified by the notion of tonnes of CO2 equivalent. This process begins with a survey identifying the sources and quantities of GHG emissions. It is then possible to establish a list of actions to be implemented to reduce these emissions. The insulation of buildings, changes in farming, construction of wind turbines, actions promoting public transport or concerning street lighting etc., all actions can be assessed and quantified in tonnes of CO 2 equivalent. All the actions conducted by a local authority towards the reduction of its GHG emissions can be calculated and compared with global targets such as Factor 4 (to reduce GHG released into the atmosphere by a factor of 4 by 2050) outlined in the Law of 13 July 2005 on the programme determining the French energy policy293. A local authority having implemented substantial GHG reduction actions can announce their success in the medium term where targets have been met and sometimes even exceeded. The actions and objectives are quantifiable and clear for the reduction of GHG emissions. They are therefore more appealing that supposedly necessary actions to adapt to the probable or even possible effects of climate change. Furthermore, the distinction between GHG emission reduction measures and adaptation measures largely coincides with another differentiation that can be made, on the one hand, between the measures that also serve other objectives and, on the other hand, measures that target only climate change. Many of the measures taken also serve other concerns: the environment, energy independence, economy, urban planning, land use planning… The urgency of action against climate change can therefore give the necessary drive to adopt provisions that could have been adopted previously for other reasons. However, the uncertainty that remains over climate change makes it more difficult to adopt provisions that relate exclusively to this issue. As adaptation measures largely belong to the latter category, they are often neglected. Such an approach is described as a “no regrets” strategy294.
289 290 291

292 293

294

Ibid. Art. L. 219-3 of the Environmental Code. Damian M., 2007, "Il faut réévaluer la place de l'adaptation dans la politique climatique", Natures Sciences Sociétés, 15, 407-410. Ibid. Article 2 of the Law n° 2005-781 of 13 July 2005 on the programme setting the guidelines for energy policy, JORF n°163 of 14 July 2005 page 11570. ONERC, 2007, "Stratégie nationale d'adaptation aux changements climatiques" Paris: La documentation française, 96p., p. 42.

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If we compare two versions of the PNR project drafted in 2006 and 2009 respectively, certain goals defined according to issues such as energy management or urban planning in 2006 appear, thanks to converging factors, in climate change response in the 2009 version. In its 2006 version, climate change is simply mentioned but without specific developments. However, many of the objectives identified for climate change response are already present at this stage in the project. Article 7 aims to contribute to the consistency of development between urban planning (including green belts and multipolar urban development) and transport (including the optimisation of road and rail infrastructures; modal split and non-motorised transport). Article 8 aims to contribute to the sustainable management of matter and energy flows (i.e. to encourage rational energy use and promote the use of renewable energies). These objectives are found in article 21 of the 2009 version explicitly dedicated to “contributing to coherent land planning for climate preservation”. It is clear that while, in the 2009 version, climate change is a key issue for the park, the solutions provided in terms of GHG emission reduction were already present in the 2006 project although climate concerns took second place and were carried forwards by other issues. This is not the case, however, for the second climate change objective in the 2009 project developed in article 21.2: adaptation. The article specifies the issues identified for the local area in terms of: “Coastal erosion, seawater intrusion into freshwater aquifers, submersion, flooding, destruction of installations will, it seems, be amplified by the rise in sea level and the increased frequency and severity of extreme weather events. Furthermore, according to scientists, the rise in sea surface temperature will induce physico-chemical alterations to seawater (salinity and acidity), wave regimes and marine current systems. This prospect implies that the areas most threatened by these evolutions must be identified and the consequences for residential areas and economic activities, in particular maritime activities and tourism, as well as for marine and coastal biodiversity must be assessed as far as possible”. In the face of these challenges, the project proposes that “the Park’s mixed union is involved and participates in the implementation of foresight studies on this issue and its effects on the shoreline and maritime activities. It proposes initiatives in terms of information and knowledge and provides its support for monitoring and measurement programmes.” The 2006 project did not comprise these adaptation objectives. The last version of the PNR project, released in 2010, provides further details on these actions: “The Park’s mixed union is involved in the production of sea level rise scenarios in partnership with the French Naval Hydrographic and Oceanographic Service (SHOM) and its effects on the shoreline and on maritime activities” and “The Park encourages local authorities to plan this anticipation by entering into a foresight approach for strategic retreat of urbanisation and developments on seafronts identified as vulnerable, to raise awareness of risk prevention plans, so that the proximity of the sea may continue to be an asset for the territory”295. By integrating the question of climate change adaptation, the project now appears innovative. In the MIES review, among the 21 cases presented, adaptation measures were rare. With the noteworthy exception of summer comfort, which appears regularly and contributes to another objective: energy management. However, once again, in coastal areas, the problem of erosion and the risk of coastal flooding existed prior to the question of climate change, contributing to the development of this aspect of climate change response in the draft PNR charter.

295

Article 21.2 of the draft charter for the Gulf of Morbihan PNR Version 3 – 2010, presented for public enquiry. Available at the following address: http://www.golfemorbihan.fr/public/upload/files/PC_ver3/Charte_version3_bassedef.pdf

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Conclusion

Following a phase of sharp acceleration from 2007, the identification of local challenges in terms of climate change is beginning to take shape. This process is implemented through strategies developed in different texts through which local authorities define their public policies. Know-how in terms of the definition of challenges and the deployment of the means selected to meet these challenges is gradually being developed. Furthermore, local authorities are not limited to the use of an ad hoc tool: the territorial climate plan. The transversality of climate concerns explains their presence in texts intended to define a sustainable development policy but also an energy policy. This know-how is transmitted and exchanged through many networks, which have notably contributed to the integration of climate change in local public policy. However, the content of these texts reveals a careful strategy by local authorities towards this issue that is not only new but also shrouded in uncertainty. The measures adopted target mainly the reduction in GHG emissions, although adaptation measures are beginning to appear. In terms of GHG emission reduction, a quantitative target such as Factor 4 can prove to be particularly worthwhile. Focusing on the figure to be attained reduces concern caused by the uncertainty of the concrete effect of climate change response measures. Local authorities have sought to combine several objectives within the same investment. The means invested in climate change response will also largely contribute to energy independence and energy cost reduction, air pollution mitigation etc. Yet the measures enabling such combinations are mainly those targeting the reduction in GHG emissions. It is therefore clear why there is currently less action towards adaptation. In material terms, the societal challenge of climate change is integrated in local coastal public policy. However local authorities optimise their chances of success through these policies by both quantitative targets and the combination of distinct objectives. Local authorities, both active and cautious in the face of uncertainties over climate change, assess their leeway and build their strategies on this issue. In this study, it appears that climate change is part of integrated “daily” management of coastal areas. Yet this integration is gradually occurring. It is more a case of cautious evolution that a revolution involving a radical shake-up of all priorities. As the Grenelle Laws opted for the mandatory character of territorial climate-energy plans, it will be interested to observe how they will promote the movement. Today, it is difficult to say whether the generalisation of these plans will result in the acceleration of this evolution, integrating increasingly innovative elements, or simply minimal response by local authorities which see it as yet another plan in an already abundant landscape. We also wait to see how climate change adaptation will be integrated in the nation strategy for the sea and shore, as well as strategic documents defining the integrated sea and coastal management objectives by seafront, another initiative introduced by the Grenelle Laws296. Two elements will play a pivotal role in this question. On the one hand we find the capacity of the State, but also of environmental protection associations, to convince others of the existence and the importance of the challenge of accurately predicting future changes due to global warming, especially in coastal areas where the question of coastal flooding and erosion is critical. Here events such as storm Xynthia will have a telling effect on these challenges. On the other hand, the capacity of local authorities to fund adaptation actions will be a key element in this question, especially at times of economic crisis and spending cuts. The introduction by the State of a funding system in
296

Art. L. 219-1 and onwards of the Environmental Code.

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line with the challenges of climate change adaptation will also be a strong marker of how important it considers the question to be.

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Table of contents
Acknowledgements..........................................................................................................................2 Contents...........................................................................................................................................3 List of acronyms and abbreviations.................................................................................................4 Introduction......................................................................................................................................6 1. National action in terms of climate change adaptation................................................................8 1.1. Coordination of national action in terms of climate change adaptation...............................8 1.1.1. Institutional framework...............................................................................................8 1.1.2. The 2004 Climate Plan................................................................................................9 1.1.3. The 2006 Climate Plan................................................................................................9 1.1.4. The national climate change adaptation strategy – November 2006.........................10 1.1.5. The national climate change adaptation plan............................................................11 1.2. Gradual integration of climate change adaptation in French national law.........................12 1.2.1. A few rare examples of sectoral integration of climate concerns..............................12 1.2.2. The Grenelle process ................................................................................................12 1.2.2.1. The Grenelle process framework........................................................................12 1.2.2.2. Commitments towards climate change adaptation.............................................13 1.2.2.3. The Grenelle Laws on climate change................................................................14 1.2.2.3.1. Grenelle I Law...........................................................................................14 1.2.2.3.1. Grenelle II Law.........................................................................................15 2. Climate change adaptation on a local scale...............................................................................17 2.1. Management of shoreline risks accentuated by climate change: mainly national-level competence................................................................................................................................17 2.1.1. Natural risk planning.................................................................................................17 2.1.1.1. Natural risk prevention schemes.........................................................................17 2.1.1.2. Natural risk prevention plans..............................................................................18 2.1.1.3. Marine erosion appendix of SMVMs.................................................................19 2.1.2. Prevention strategies against the impacts of climate change in coastal areas...........21 2.1.2.1. Defence against the sea.......................................................................................21 2.1.2.1.1. Who can decide to build sea defence structures?.......................................21 2.1.2.1.2. Legal regime applicable to the construction of sea defence structures......23 2.1.2.2. Strategic retreat...................................................................................................24 2.1.2.2.1. Shoreline construction restrictions based on urban management..............24 2.1.2.2.2. Expropriation and no build areas based on risk management....................26 2.1.2.2.3. Pre-emption rights......................................................................................27 2.2. The place of local authorities in climate change adaptation..............................................29 2.2.1. Climate change adaptation planning.........................................................................29 2.2.1.1. Regional climate, air and energy schemes..........................................................29 2.2.1.2. Territorial climate-energy plans..........................................................................29 2.2.2. A myriad of skills available for climate change adaptation.......................................31 2.2.2.1. Urban and land planning.....................................................................................31 2.2.2.2. Tourism...............................................................................................................34 2.2.2.3. Environment.......................................................................................................34 2.2.2.4. Economic aid......................................................................................................37 2.2.2.5. Transport and networks: equipment...................................................................38 2.2.2.6. Housing and building..........................................................................................41 2.2.2.7. The general competence clause..........................................................................44 2.3. Development of integrated coastal zone management comprising climate change...........47 2.3.1. Local pilot experiments: knowledge development....................................................47 2.3.2. Development of local action in terms of climate change..........................................49 55/64

2.3.2.1. Legal instruments for the development of integrated coastal management comprising climate change prospects..............................................................................49 2.3.2.2. Definition of local climate change issues...........................................................50 Conclusion.....................................................................................................................................53 Table of contents............................................................................................................................56 Bibliography..................................................................................................................................58 Appendices: ..................................................................................................................................61 Appendix I: Details on the transfer of sea ports, civil airfields, navigable waterways and inland ports................................................................................................................................62 Appendix II: Grenelle commitments towards climate change adaptation................................63

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Bibliography
This bibliography includes all the publications, articles and reports quoted in this report. For a wider bibliography of documents used to produce this study see the document "Changement climatique et politiques publiques sur la zone côtière - bibliographie thématique"297. ADEME, MEDDAT, "Les économies d’énergie dans le bâtiment - L’ensemble des dispositifs pour améliorer la performance énergétique des bâtiments", April 2008, 8p. Anziani, A., Rapport d'information, fait au nom de la mission commune d'information sur les conséquences de la tempête Xynthia n° 647 tome I (2009-2010), Xynthia : une culture du risque pour éviter de nouveaux drames, 7 July 2010, 227p. Aubay, J.B., Auby, J.F. et Noguellou, R., Droit des collectivités locales, Paris: PUF, Collection: Thémis droit, 2008, 379p. Bécet, E., et Bécet, J-M., Les documents d'urbanisme littoraux, Voiron: éditions territorial, 2008, 121p., p. 43 Bécet, J-M., Le droit face au problème de l'érosion marine, DMF, 1996, p.666 Becet, J-M., Le droit de l'urbanisme littoral, Rennes: Presses Universitaires de Rennes, Collection Didact droit, 2002, 254p., p. 95. Bonnard (M.) (coord.), Les collectivités territoriales, Paris: La documentation française, Collection: Les notices, 2009, 254p. Bordereaux, L. and Braud, X., Droit du littoral, Paris: Lextenso éditions, Collection Master pro, 443p. Clus-Auby (C.), Paskoff (R.) and Verger (F.), Impact du changement climatique sur le patrimoine du conservatoire du littoral - Scénarios d’érosion et de submersion à l’horizon 2100 – Synthèse, Conservatoire du littoral et Fondation d'entreprise Propter & Gamble pour la protection du littoral, 2004, 43p., http://www.conservatoire-du-littoral.fr/tmp_old/Rapport%20Changement %20climatique.pdf Commission Européenne, Vivre avec l'érosion côtière en Europe - espaces et sédiments pour un développement durable, Luxembourg: Office pour les publications officielles des Communautés Européennes, 2004, 40p. Coulombié, H. et al., Droit du littoral et de la montagne, Paris: Litec, 2009, 512p. Damian M., 2007, "Il faut réévaluer la place de l'adaptation dans la politique climatique", Natures Sciences Sociétés, 15, 407-410. Dantonel-Cor, N., Droit des collectivités territoriales, Rosny sous bois, Bréal collection: Lexifac droit, 3rd edition, 2007, 288p., p. 248. Faure, B. Droit des collectivités territoriales, Paris: Dalloz, Collection Précis droit public, 4th edition, 2009, 701p. Ferstenbert, J. & al., "Droit des collectivités territoriales", Paris: Dalloz, 2009, Collection Hypercours, 756p.
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Queffelec, B. & Philippe M., "Changement climatique et politiques publiques sur la zone côtière - bibliographie thématique", March 2010, 25p. Available at the following address: http://imcore.wordpress.com/partners/golfe-dumorbihan/

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Février, J-M., "Actualité de la prévention des risques naturels", Environnement n° 3, March 2005, study 4 Godard, O., 2007, "Climat et générations futures - Un examen critique du débat académique suscité par le Rapport Stern", Cahiers de la chaire du développement durable (polytechnique), DDX-07-12, 35p. Guillien, R., et al., Lexique des termes juridiques 2010, Paris: Dalloz, 17th edition, 769p. Hervé-Fournereau, N. (Dir.), 2008, Les approches volontaires et le droit de l'environnement, Rennes: Presses Universitaires de Rennes, Collection L'Univers des normes, 326p. Jacquot, H. and Priet, F., "Droit de l'urbanisme", Paris: Précis Dalloz, 2008, 6th edition, 978p. Lucchini, L., Orsenna, E., Daubigny, J., Besse, G., Babkine, M., Grenelle de la Mer - Rapport du groupe 4 : "Planète mer : inventer de nouvelles régulations", Paris: Ministère de l'écologie, de l'énergie, du développement durable et de l'aménagement du territoire, 2009, 72p. Merckelbagh, A., Et si le littoral allait jusqu'à la mer! - La politique du littoral sous la V° république, Paris: Editions Quæ, 351p. MIES, 2007, "Plans Climats Territoriaux: des territoires en action - 21 collectivités engagées dans la relève du défi climatique - 1er recueil d'expériences", 67p. Ministère de l’Ecologie, de l’Energie, du Développement durable et de la Mer (MEEDDM), La gestion du trait de côte, Paris: Editions Quæ, 2010, 290p. Ministère de l'Ecologie et du Développement Durable, "Plan climat 2004 – face au changement climatique agissons ensemble", 2004, 88p. Ministère de l'Equipement, des Transports et du Logement; Ministère de l'Aménagement du Territoire et de l'Environnement, "Plans de prévention des risques littoraux (PPR) – guide méthodologique", Paris: La documentation française, 1997, 56p. N. Calderaro, Loi littoral et loi montagne – guide de jurisprudence commentée, Paris: Edition Formation entreprise, 2005, 675p. ONERC, 2007, "Stratégie nationale d'adaptation aux changements climatiques" Paris: La documentation française, 96p. Pontier, J.-M., "Des CPER aux CPER : les contrats de projet 2007-2013", AJDA, 2008 p. 1653. Premier Ministre "Face au changement climatique, agissons ensemble - Actualisation 2006 du Plan Climat 2004-2012", November 2006, 70p. Queffelec (B.) and Philippe (M.) "La gestion des zones côtières dans le golfe du Morbihan : regard du projet Corepoint", rapport Corepoint 2008, cofinancement Interreg région Bretagne, CG Ille-etVilaine, CG Morbihan, 148p. Rasse, G., Les plans de prévention des risques – La prévention des risques majeurs par la maîtrise de l'usage des sols, Paris: Lavoisier, Collection Sciences du risque et du danger, 61p. Rouillard, C., "La prise en compte du réchauffement climatique dans la stratégie du Conservatoire du littoral - Eléments de cadrage pour l’intégration des conséquences du réchauffement climatique dans la stratégie du Conservatoire du littoral : problématique, premières orientations et recommandations en termes de formalisation et de communication", Etude de cadrage Conservatoire du littoral, September 2008, 34p. Sansévérino-Godfrin V., 2008, Le cadre juridique de la gestion des risques naturels, Paris: Lavoisier, Collection Science du risque et du danger, série Notes de synthèse et de recherche, 71p. Sido, B., Rapport n° 165 (2008-2009), fait au nom de la commission des affaires économiques, déposé le 14 janvier 2009 "Projet de loi de programme relatif à la mise en œuvre du Grenelle de 58/64

l'environnement". Stern N. (dir.), 2006, The Stern Review Report: The Economics of Climate Change. London: HM Treasury, 30 October, 603 p. Verges, P. (Coord.) "Plan Adaptation Climat - Rapport des groupes de travail de la concertation nationale", 30 June 2010, 163p.

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Appendices:

List of appendices:

Appendix I: Details on the transfer of sea ports, civil airfields, navigable waterways and inland ports. Annexe II: Grenelle commitments towards climate change adaptation

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Appendix I: Details on the transfer of sea ports, civil airfields, navigable waterways and inland ports.

As concerns sea ports, civil airfields and civil heliports: the Law of 13 August 2004 did not determine the local authorities to which these facilities should be transferred, rather it led to a sort of tender process. All local authorities or associations of local authorities could make a request, until 1st January 2006 (1st July 2006 for civil airfields), to acquire ownership of these major facilities and be responsible for their equipment, maintenance and management. If no other requests were presented within a 6 month period, the facility was transferred to the local authority or group of petitioners. If several requests were presented for the same facility, the State representative in the region organised a consultation between the authorities and associations interested, and strived to result in a single request. In this case, he designated the authority or association concerned as the beneficiary of the transfer. If no agreement was made, he designated the beneficiary. As concerns ports whose main activity is fishing or trade, in the event of disagreement between petitioners, the State representative in the region designated a department or the region. As concerns civil airfields belonging to the State, the transfer excluded airfields of national or international interest and those necessary for State missions (the list of which appears in Order 2005-1070 of 24 August 2005). In the event of disagreement between petitioners, the State representative designated the beneficiary of the transfer. If the region was an applicant, it was given priority298. An identical process was applied to civil heliports. As concerns public waterways, all local authorities can request the transfer of freehold of waterways, canals, lakes of water bodies free of charge, except - the category of waterways of national interest299; - those for which a concession has been granted by the State for hydraulic energy use - if hydraulic coherence cannot be ensured. The region is given priority300. The Law also provides for the possibility of a trial, for a maximum duration of 6 years, of the transfer of development and operation without ownership being transferred301.

298

299 300

301

Nevertheless, if a local authority or association of authorities had been in charge of managing the air field concerned and had funded most of its investments over the 3 years preceding the entry into force of the Law, this party was given priority. Order 2005-992 of 16 August 2005. Art. L.3113-1 of the General Code of Public Entity Properties; Arzul, G. "Le renouveau du droit du domaine public fluvial", Paris: Editions Johanet, 2008, 503p. Art. L.3113-2 of the General Code of Public Entity Properties.

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Appendix II: Grenelle commitments towards climate change adaptation

Grenelle Environment Round Table
• Commitment n°11 Mobilising the profession: intensive professional training and recruitment: * launch of a large-scale professional training, recruitment and qualification plan for construction professionals addressing energy performance, greenhouse gas reduction, climate change adaptation and interior sanitary standards (…) • Commitment n°47 The main part of any new environment resource introduced with respect to climate change could be allocated to the funding of low emission transport projects (AFITF302), and to local authorities to fund territorial climate-energy plan actions, in particular the development of public transport. • Commitment n°50 A new legislative framework emphasising the major role of local authorities and giving them appropriate tools: o to introduce climate change adaptation and energy management into land planning objectives: the estimated relevant scale is that of populations areas and conurbation communities or urban communities of over 100 to 150,000 inhabitants. o to encourage global urban planning, comprising transport, housing, public areas, trade, and generalise SCOTs (territorial coherence schemes) in sensitive areas. o to reinforce the binding nature of SCOTs. o to introduce SCOTs into energy performance and greenhouse gas emission criteria. o to generalise territorial climate-energy plans by making them mandatory within 5 years and coordinating them with urban planning documents. o to take concrete prevention measures against urban sprawl: (...) o and to gradually guide the local tax system and financial and tax incentives in the field of housing and urban planning towards more sustainable urban development guaranteeing more economical resource and area management. • Commitment n°71 Rapidly produce a national climate adaptation plan, supported by research, to be applied through the territorial climate-energy plans, for economic activities as well as in cooperation with countries of the south. • Commitment n°73 Green belts are a land use planning tool, composed of large natural areas and corridors connecting them or acting as buffer areas, based on mapping on a scale of 1:50000. They are completed by blue belts composed of waterways and water bodies, and vegetated strips running alongside these waterways and water bodies. They create territorial continuity, which constitutes an absolute priority. Green and blue belts are run locally in association with the local authorities and in cooperation with field operators, on a contractual basis, within a coherent framework guaranteed by the State: reference framework to be defined in 2008; mapping of continuities and discontinuities to be
302

French agency for the funding of transport infrastructures.

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conducted on a national level within two years; consultation of contractual and incentive regulatory terms (inclusion in urban planning documents) and drafting of the programme within the region in 2009-2012; joint establishment of a biodiversity criteria for DGF 303; green and blue belts binding for large infrastructures; payment of environmental services; set-up of the pan-European network with a view to climate change adaptation.

Grenelle Oceans Round Table
• Commitment 74.d. Systematically recognise natural risks (tsunamis etc), the general rise in sea level and other effects of climate change in regional development policies and adapt planning schemes accordingly to reduce the vulnerability of populations and regions: o For industrial activities operating close to water (now or in the future), it is necessary to anticipate the effects of the possible rise in sea level and monitor the possible impact on the environment and the economic activities dependent thereon of extracting and/or discharging water. o In the short term, integrate these issues into town planning and development documents and permissions - modify the corresponding section of the Grenelle 2 draft bill. o Improve the planning of restorative actions to facilitate return to normal after a major climate event. o On pilot sites, particularly in overseas collectivities, draw up plans for relocation in the event of rising sea levels. • 74.e. Make a list of critical points relating to short-term threats (changes in elevation, erosion, state of defences etc.) and set up a system to monitor these points. • 74.f. Develop a national methodology and strategy (collectivities and the State) to manage the coastline, plan for strategic relocation and establish sea defences. • 75.a. Encourage town planning and architectural innovations on the coast to combat urban sprawl and intensive building of houses in the countryside and allow coastal areas to adapt to climate change. • 109. Increase the amount of information available on the risks linked to climate o 109.a. Promote a national information programme for coastal populations to help protect them against exceptional phenomena. o 109.b. It is of vital importance that coastal populations be made aware of major risks and prepare for them. • 129.a. Increase national and local knowledge and understanding of changing climate events and the extent of the coastline in order to improve decision-making and the drawing up of management strategies, particularly in overseas collectivities.
303

Dotation Globale de Fonctionnement (general operating grant).

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• 129.b. Launch national deliberations on risk prevention in order to create common support tools for the overseas territories and the pooling and exchange of experience within and between maritime basins.

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