Bury 500 meters underground, under a thick layer of clay, our most dangerous radioactive waste. Radioactive over several hundred thousand years for some… This is the whole purpose of the Cigéo project, under discussion since 1991, and which is gradually taking shape Bure, in the Meuse. By a decree passed in July 2022, the government declared it of public utility. In the process, environmental NGOs and local residents attacked this decree before the Council of State. This appeal was an opportunity to pose a Priority Question of Constitutionality (QPC) to the Constitutional Council, so that the conformity of the waste treatment method planned in Bure with the constitutional principles, namely those laid down by the preamble of the Environmental Charter of 2005.
This is the response given by the Constitutional Council this Friday. If she considers that the provisions of the Cigéo project do not disregard the rights of future generations, this decision should still be a landmark in terms of environmental protection. Explanations with Emilie Gaillard *, teacher-researcher in private law at Science Po Rennes, specializing in the law of future generations, and Arnaud Gossé, lawyer specializing in environmental law.
What precisely did the Constitutional Council have to rule on?
Arnaud Gossé : A law of July 26, 2016 clarified the terms of creation of the Cigéo project, in particular the provisions planned concerning the reversibility of the storage of this radioactive waste. This is a major issue: Are we permanently storing this dangerous waste underground, or are we planning arrangements that will allow it to be recovered in the future? Behind, the question is to know to what extent we make choices today that will impact those of future generations? This Friday, therefore, the Constitutional Council judged the provisions of this law of July 26, 2016 to be consistent with the Constitution for the rights of future generations “taking into account [des] guarantees” provided.
What to disappoint the applicants?
Emilie Gaillard : We can be, yes. This decision amounts to saying: “it is in accordance with the Constitution, so move around, there is nothing to see”. However, this Cigéo project, as it is planned, raises real questions about proper respect for the rights of future generations. In my eyes, there is confusion between “reversibility” and “recoverability”. The first notion implies that we can go back in time, that future generations will be able to have access to radioactive waste and store it differently. But are they still recoverable? And at what cost? I visited Cigéo [20 Minutes aussi !]. We are told that the radioactive waste will be stored 500 meters underground, but also in sealed tubes slipped into the cells (for the most dangerous)… This waste will be radioactive for millennia, while the Cigéo site is not planned to be in operation for only 100 years. How do we ensure reversibility beyond that?
Why could this Friday decision still be a landmark?
AG : We should not have expected the Constitutional Council to cancel the authorization of the Cigéo project. This decision to deep store our radioactive waste is an extremely political debate. If he had rebutted it, he would have been immediately accused of “rule by judges”. We must see beyond the scope of this decision. There are some very interesting points which will certainly have repercussions, particularly on the way projects should be carried out in the future.
EG: There is indeed a major breakthrough. This notion of future generations already existed in our legislative texts. But until then they had not been granted constitutional rights. This is what the Constitutional Council did by considering that article 1 of the Environmental Charter, which has constitutional value, was also valid for future generations. This article recalls the right of everyone to live in a healthy and balanced environment. This link which has been made is a first in France.
What exactly could be the repercussions?
E.G. : This opens up lots of perspectives. The Stocamine affair, for example, these 42,000 tonnes of hazardous waste (arsenic, asbestos, incineration residues, etc.) that we decided at one time to bury in a former potash mine in Alsace, 550 meters underground. This waste threatens in the long term the water table of Alsace, the largest in Europe, and therefore the drinking water supply for future generations in this region. In this slippery issue, we are told that the risks are several centuries away, which sounds like an invitation to do nothing. This decision of the Constitutional Council can relaunch the case. NGOs and their lawyers could rely on this to request that they have the necessary funds to finally collect this waste.
This is just an example. The rights of future generations are at stake in almost all of humanity’s existential risks: nuclear power with its waste, the climate, chemical pollution, the use of pesticides, endocrine disruptors. It’s not going to happen in an instant, but this decision opens a gap. In my opinion, we can link all the articles of this Environmental Charter to the rights of future generations. All my work as a researcher is to see how we could do it for all fundamental rights texts. Including the Declaration of the Rights of Man of 1789.
Why had this angle of attack on the rights of future generations not been taken up until now by environmental associations?
E.G. : It takes a long time to raise awareness. Just a few years ago, we didn’t care much about the environment. The rule was “don’t see it, don’t take it” and “after me, the flood”. We are gradually emerging from it as we become aware of the seriousness of the ongoing environmental crises. And, finally, people no longer look at us with wide eyes when we ask this question of the rights of future generations. It’s not just happening in France. In 2021, the German federal constitutional court ruled in favor of plaintiffs who attacked the state on the inadequacy of its climate commitments, likely to hamper the future. In 2024, the UN also convenes a Summit of the future, with the aim of having a pact for future generations adopted.
Is there not then the risk, by declining all of our rights and duties to future generations, of no longer being able to undertake anything?
AG : This decision of the Constitutional Council shows precisely that no. It does not cancel the Cigéo project. On the other hand, and this is also why it is interesting, it details the conditions of this future storage in a long and motivated response. It recalls the special authorization, information and public participation procedures, the follow-ups every five years… We can see it as a warning to legislators, a way of saying that justice will ensure the proper application of the law . And we can estimate that this signal is sent for all projects subject to environmental authorization. Because as much as the Cigéo project is well framed with regard to these issues, others are much less so even though they have serious consequences for future generations.
E.G. : We must start from the current situation where we preempt the future because we do not recognize legal status for future generations. We are not in a democratic state if our actions endanger them. Of course, one should not swing into the opposite extreme. We would no longer be in a democracy. The challenge is to find the right balance, to move towards more complexity by adding this temporal dimension to our projects and actions.