On October 11, 2013, the French constitutional court finally issued its long-awaited ruling on the July 13, 2011 law banning hydraulic fracturing and confirmed its constitutional validity.
In response to the cancellation of its research permits pursuant to the foregoing legislation, Shuepbach Energy LLC used the new constitutional review tool known as the "priority preliminary constitutional ruling" (question prioritaire de constitutionnalité) in an attempt to challenge the constitutional validity of the fracking ban. In its brief, the company raised four series of grievances, but to no avail. All four were dismissed by the court.
At the outset, the claimant alleged that the ban on fracking in the shale gas prospecting and exploitation context violated equal treatment principles since fracking is otherwise lawful in the management of geothermal reservoirs. The court rejected that argument, stating that fracking techniques themselves, the number of fracking wells, and the nature of fluids used actually warrant such risk-based differentiated legal treatment.
The claimant also stated that the ban violated the freedom of enterprise principle. In this respect, the court recalled that the restriction applies to both conventional and nonconventional resources in the framework of an administrative authorization regime, in the context of which administrative authorities act in furtherance of the general interest. It therefore concluded that, based on current scientific knowledge, the ban is not a disproportionate measure and is consistent with the environmental protection objective pursued by the legislator.
On the violation of property rights, the court considered that in allowing the abrogation of research permits on the basis of which fracking is carried out, the legislator merely drew the consequences of a statutorily established fracking ban and did not infringe on lawfully acquired rights. It further asserted a well-established principle according to which administrative authorizations do not create proprietary rights. As a consequence, the abrogation of permits on the basis of the fracking ban does not qualify as a property deprivation against which the Constitution protects.
Finally, with regard to the alleged violation of certain provisions of the French constitutional environmental charter, the court recalled that article 6, which states that "public policies shall promote sustainable development," does not establish per se rights or freedoms that are guaranteed by the Constitution. As far as the precautionary principle of article 5 goes, the court merely stated that "by all means" such principle cannot be invoked with respect to a perennial prohibition such as that established by the 2011 law.
Unfortunately, the court skipped the claim of an overly rigorous enforcement of the precautionary principle, leaving the matter to indemnity claims that are reportedly pending already.
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