Green Industry Bill Considered in Senate

The green industry bill, led by the Minister for the Economy, the Minister for Ecological Transition and the Minister Delegate for Industry, was deliberated on May 16, 2023 in the Council of Ministers after consulting the Board of state (https://www.conseil-etat.fr/avis-consultatifs/derniers-avis-rendus/au-gouvernement/avis-sur-un-projet-de-loi-relatif-a-l-industrie-verte).

The bill was then tabled in the Senate on May 16, 2023 with an impact study (https://www.senat.fr/leg/pjl22-607.pdf).

For this bill, the government has initiated the accelerated procedure.

Calendar

 

–   Wednesday, May 31, 2023: hearings of the Minister for the Economy, Bruno Le Maire and the Minister Delegate for Industry, Roland Lescure at the Senate Economic Affairs Committee (https://videos.senat.fr/video.3940555_6476f35b62026?timecode=913000).

–       June 13 and 14, 2023: examination of the draft law in the Economic Affairs Committee (referred to on the merits), in the Law Committee, in the Finance Committee and in the Regional Planning and Sustainable Development Committee (referred for opinion and partially on the merits).

–       From June 20, 2023: examination of the text in public session.

(https://www.senat.fr/travaux-parlementaires/textes-legislatifs/la-loi-en-clair/projet-de-loi-relatif-a-lindustrie-verte.html).

Structure of the bill

 

The bill has nineteen articles. It is organized into three titles, respectively devoted to measures intended to accelerate industrial establishments and to rehabilitate brownfields. (Title I^er), the environmental challenges of public procurement (Title II) and green industry funding (Title III).

Expected impacts

 

With regard to the expected impacts, they are environmental (ie reduction of 41 million tonnes of CO2 by 2030) and economic (ie 23 million euros of investment by 2030 and 40,000 direct jobs from here 2030).

1.     Context and objective of the bill

 

The green industry bill aims to make France "the champion of green industry in Europe"[1].

It revolves around several objectives, one climatic, aims to deal with climate change by reducing the environmental impact of industry, the other, economic, seeks the reindustrialization of France to enable it to develop technologies green (ie wind, photovoltaic, batteries, heat pumps) finally, the last plans to decarbonize existing industries.

 

This bill also aims to restore France's industrial sovereignty in the green technology sector to avoid a lack of attractiveness and competitiveness compared to countries such as the United States or China. Indeed, the establishment of production chains for these green technologies is today the subject of intense international competition (we can note, for example, in the United States the IRA[2] or Chinese subsidy policy[3])[4].

 

2.     Axes and measures identified

 

To achieve these objectives, the bill identifies the following areas:

–       Facilitate the establishment of industrial sites in France, in particular by accelerating installation procedures;

–       Finance green industrial projects by mobilizing public and private funds;

–       Promote the most virtuous companies from an environmental point of view, by restricting orders and public aid;

–       Training for jobs in the green industry.

These axes have made it possible to identify fifteen bars for green industry.

It should be noted that not all fifteen measures are included in the green industry bill. Indeed, some of them will be taken by regulation, while others will be implemented in the finance law for 2024.

This is particularly the case of “green industry investments” tax credit (C3IV) which aims to support industrial sectors that contribute to carbon neutrality objectives by investing in green industries, and which will benefit industrial investors by covering up to 40% of productive investments.

3. Summary of the bill's measures

 

Title I^er of the bill contains measures intended to accelerate industrial establishments and rehabilitate brownfields. These measures aim to meet the needs of manufacturers who want to set up or develop a site in France and who are looking for land that can be mobilized quickly with the shortest possible installation times. The government thus announced in its communication[5] want to offer 50 pre-arranged and pre-equipped sites that will be immediately available to any company wishing to set up a new factory. These sites will also be cleaned up when they are redeveloped industrial wastelands.

From this perspective, the chapter I^er of the bill aims to strengthen industrial planning in the territories.

Article 1 organizes this industrial planning on a regional scale, within the framework of regional planning, sustainable development and territorial equality plans (SRADDET) drawn up by the regions. To do this, the bill proposes to supplement the issues and themes covered by the SRADDET with an objective in terms of the development of industrial activities. 

 

THE chapter two aims to improve and speed up the administrative procedures for issuing authorizations and to modernize the public inquiry in order to reduce the time it takes to set up a factory. Indeed, the delays of administrative procedures prior to the establishment of a new factory are twice as long in France as in other countries, which represents a significant obstacle for investors and in the implementation of industrial projects. . For example, the time required to obtain the environmental permit can take up to 17 months on average, thus exceeding the 8 months of its theoretical duration, which is between 9 and 12 months. The proposed measure will thus make it possible to reduce the investigation phase by the services and by the environmental authority, by parallelizing this phase with the consultation of the public.

 

Section 2 thus proposes to review the procedures for consulting the public in order to take the latter's opinion into account earlier in the course of the procedure; and this, from the admissibility of the environmental authorization application file. It is also planned at least two public meetings between the project leader and the citizens, meetings organized by the investigating commissioner. These times of exchange are intended to present, on the one hand, the project and to allow, on the other hand, exchanges and consultation between the stakeholders. The same article also creates new provisions in the environment code intended to adapt the procedure for issuing the environmental authorization necessary for the start-up of industrial activities; procedure which parallelizes the instruction phases of the services and the environmental authority instead of sequencing them. The provisions of this article also aim to speed up the issuance of the authorizations necessary for the implementation of corporate decarbonization projects.  

Section 3 aims to set up a pooling of prior consultations with the public on the scale of a geographical area. Thus, in areas of strong industrial and economic development, this article establishes the possibility of carrying out a public debate or a general prior consultation on a given geographical area in order to present to the public an overall vision of the projects envisaged on the zone instead of carrying out successive preliminary consultations project by project, without a consolidated vision.

In his chapter III, the bill includes provisions to encourage the development of the circular economy.

To do this, section 4 of the bill aims to simplify the procedure for exiting the waste status, thus making it possible to reuse recycled raw materials to manufacture new products. This article also aims to facilitate the management of production residues between companies located within industrial platforms, by allowing the recycling of production residues without any particular procedure, provided that they do not present any overall harmful effects for the environment. and human health. This article also establishes administrative fines against the illegal transfer of waste outside the national territory, when these transfers have been carried out in a way that does not comply with the declaration of recovery or treatment that has been made.  

In order to be able to have sites suitable for hosting new factories, while limiting the artificialization of natural areas, the chapter IV of title I^er aims to encourage the rehabilitation of brownfield sites.

From this perspective, section 5 contributes to the smoothing of cessations of activity. The article includes three measures modifying the Environment Code, intended to accelerate and facilitate the renewal and rehabilitation of industrial land for sites approaching the end of activity or already in cessation of activity. The first measure of the article opens up the possibility for an operator whose cessation of activity was notified before 1^er June 2022 to be able to ask the administration, on a voluntary basis, to apply the new procedure for cessation of activity introduced by law n° 2020-1525 of December 7, 2020 on the acceleration and simplification of public action (“ASAP” law), which simplifies and speeds up exchanges between operators and the administration, in particular by facilitating the end-of-operation process by requiring the use of a professional (certified design office or equivalent) two times during the cessation of activity procedure. The second measure of the article proposes improvements to the third-party plaintiff procedure to facilitate its implementation and adapt its scope. The third measure expands the framework for triggering the notification of the cessation of activity by taking into account the definitive shutdown of a classified installation on only one part of the footprint of the operated site, the other part being able to continue to be the seat of a pursuit of classified activities.

Section 6 aims to strengthen the State's means of action in the event of business failure and to strengthen site security actions. This article aims to promote ultimately the rehabilitation of industrial land and to prevent the appearance of industrial wasteland. It includes three measures intended to review the methods of action by the State during the cessation of activity of an industrial site following default by the operator. More specifically, this article aims to offer new levers of action when the operator has not fulfilled his obligations in terms of securing the site. The first measure of this article replaces the obligation to set up financial guarantees for ICPEs covered by 5° of Article R. 516-1 of the Environment Code with more effective measures, making it possible to secure the sums intended for the securing the site, in the two targeted cases: liquidation and illegal exploitation. The second measure makes it possible, in the event of liquidation of the company, to introduce the corresponding expenses for the environmental security of the site in the list of debts to be paid on their due date when they arise regularly after the judgment which opens or pronounces judicial liquidation and to "seniorize" these expenses in the classification of claims by creating a rank for the environmental claim in the list of privileged claims. The third measure allows, in the event of illegal exploitation of a site, the consignment, without delay, of sums in the event of non-compliance with the protective measures imposed by the administration.

Article 7 of the bill proposes measures to promote the establishment of natural restoration and renaturation sites (SNRR), replacing natural compensation sites (SNC). This reform will allow project promoters to carry out compensation operations in advance, including for isolated projects, for example for “turnkey” sites. It also creates an appropriate legislative framework for the development of biodiversity restoration operations carried out for voluntary commitments by companies and local authorities, and facilitates the site approval procedure.

Chapter V of the bill aims to facilitate and accelerate the establishment of green industries. More specifically, it sets up mechanisms to accelerate the deployment of industrial sites of major national interest or falling within the scope of green industry. Indeed, because of their strategic nature for sovereignty, these projects are currently subject to a large number of administrative procedures, including the organization of a public debate and the compatibility of local town planning and regional planning documents. , which extends the delays by 24 months before the project can obtain all the necessary authorizations. Thus, the measures provided for by the bill tend to implement a specific procedure, exceptional and piloted by the State, for these so-called projects of “major national interest”.

In the first place, section 8 clarifies the scope of the project declaration procedure in order to explicitly include the establishment of industrial activities in the value chains of technologies favorable to sustainable development.

Section 9 creates an exceptional and simplified framework for the compatibility of planning and urban planning documents, directly initiated by the State, for projects of major national interest recognized as such by decree. The article also entrusts the State with the power to issue planning permission for these industrial projects of major national interest, so that the prefect is the project leader's single interface for all the procedures. administrative. The article then extends to these projects the provisions for accelerating the electrical connection established by law no. 2023-175 of March 10, 2023 relating to the acceleration of the production of renewable energies (articles 27 and 28). Finally, it provides for the possibility of recognizing, on a case-by-case basis, that a project of major national interest is a project meeting an imperative reason of major public interest (RIIPM) within the framework of the procedure for derogation from the obligation to strict protection of protected species.

Section 10 aims to reinforce the consistency of the declaration of public utility (DUP) procedure and its legal solidity by allowing, well before the finalization of the authorization file and the start of the works phase, to recognize in a project the character of a project responding to an imperative reason of major public interest (RIIPM), and this, from the phase of declaration of public utility of the project. This measure aims to secure project promoters in their procedures, provide better guarantees for respect for property rights, resolve any disputes related to the RIIPM upstream and allow the project promoter to project themselves on the protected species derogation procedure. from the DUP.

Section 11 Finally, it helps to accelerate the transformation of economic activity zones (ZAE) by facilitating commercial consolidation to accommodate new projects, particularly industrial ones. Indeed, currently these transfers are subject to obtaining a new authorization for commercial exploitation, which constitutes a major obstacle. The article thus provides for the possibility of exempting a commercial consolidation operation from this obligation, by attaching specific conditions to the derogation, linked in particular to the registration of this consolidation within the framework of a major urban planning operation.

Title II of the bill proposes adaptations in terms of public procurement in order to better take into account environmental issues.

Section 12 of the bill modifies article 12 of the DDADUE law[6] empowering to legislate by ordinance to transpose the “CSRD” directive[7] in order to allow the government to introduce, within the code of public procurement, a new exclusion device called "at the discretion of the buyer or the licensing authority", for economic operators who do not satisfy to their obligations to publish information in terms of sustainability resulting from the "CSRD" directive.

Section 13 makes several changes to the public procurement code.

– Firstly, it modifies article L. 2111-3 of this code in order to clarify and extend the scope of the schemes for promoting socially and ecologically responsible public purchases (SPASER) to all buyers, including including the state. It also facilitates and simplifies the implementation of such schemes by introducing to the same article the possibility for several buyers to pool a SPASER.

– Secondly, following on from Directive 2014/24 on public procurement, Article 13 recalls that the most economically advantageous tender is determined on the basis of price or cost, according to an approach based on the cost-benefit ratio. efficiency, and that it can take into account the best value for money, which is assessed on the basis of criteria including qualitative, environmental or social aspects.

– Thirdly, in order to promote the consideration of sustainable development in public procurement, particularly with regard to the objective of reducing greenhouse gas emissions, article 13 introduces two new articles into the public procurement code (articles L. 2141-7-2 and L.3123-7-2) establishing a new exclusion mechanism called "at the discretion of the buyer or the licensing authority", for people who do not satisfy their obligation to draw up a report of their greenhouse gas emissions (BEGES) for the year preceding the year of publication of the notice of call for competition or of the start of the consultation. Provided for in Article L. 229-25 of the Environment Code, this obligation, which concerns approximately 5,000 private and public players, makes it possible to draw up a precise diagnosis of greenhouse gas emissions, accompanied by a transition plan, with a view to identifying and mobilizing levers for reducing these.

Section 14 extends these provisions to Wallis and Futuna, French Polynesia, New Caledonia and the French Southern and Antarctic Lands.

THE title III provides for the implementation of financing tools. In this context, the government has announced the creation of a green industry label and the general use of simple labels to identify and ensure the reliability of investments in favor of the decarbonisation of the economy, the development of ELTIF 2 funds as well as capital - green investment in the context of life insurance and retirement savings.

So, section 15 of the bill introduces a general reference obligation in life insurance contracts for units of account that have obtained the labels recognized by the State that meet the objectives of ecological transition or socially responsible investment, the precise list of which would be defined by decree.

Section 16 creates a new savings product specially intended for minors, called the "future climate savings plan", which will, on the one hand, prepare young people for entry into working life and which, on the other hand, will have to contribute to finance the ecological transition. 

The opening of this product will be possible from birth and at any time until reaching majority, with a single account per child and in his or her name, and will be accompanied by regular and detailed information in a process financial education for minors.

The State will pay a contribution for any opening of a future climate savings plan during the holder's year of birth, the amount of which will be set by regulation. A savings blocking period will be provided until the majority, with the possibility of exceptional unblocking (invalidity and death). Payments will be possible at any time, and by any person without necessarily being related to the minor, during the blocking period and according to free terms (punctual or scheduled payment). An outstanding limit will be put in place.

A public institution will be responsible for investing the outstanding amounts of future climate savings plans in financial securities contributing to the financing of the productive economy and ecological transition while offering sufficient protection to savers. Withdrawals will be possible at any time after the blocking period: the product will therefore not be closed at the end of the blocking period and left at the disposal of the holder, but without the possibility of new payments.

Section 17 aims to develop investment capital in life insurance and retirement savings to finance the decarbonization of SMEs and ETIs, by giving policyholders easier access to unlisted assets.

Two measures are proposed concerning the retirement savings plan (PER): on the one hand, provide for the possibility of setting by regulatory means a minimum of unlisted assets and assets financing SMEs and ETIs; on the other hand, extending the assets eligible for the PER to professional funds and providing for more flexible subscription conditions in cases where the investor's protection is sufficient.

Similarly, two measures are proposed for life insurance: on the one hand, the creation of an obligation to present a profiled managed management method, providing for certain profiles the possibility of setting by regulation a minimum unlisted assets and assets financing SMEs and ETIs in the management grids; on the other hand, an extension of the assets eligible for life insurance to specialized financing organizations and the addition of the possibility of providing for more flexible subscription conditions. Finally, as a corollary to these measures which give savers the possibility of exposure to an asset class with a higher risk/return ratio, this project plans to strengthen the duty of advice in order to make it effective throughout of the life of the contract. For this, the text provides that the advice is exercised in the event of a change in the personal situation of the insured, for contracts on which no transaction has been carried out or only scheduled transactions, and in the event of a significant transaction.

The last two articles of the bill introduce several provisions aimed at supporting the development in France of European long-term investment funds known as “ELTIF 2.0”. These funds are characterized by directing investments towards SMEs/ETIs, infrastructures and real estate.  

Section 18 introduces a temporary clause easing the constraints imposed on undertakings for collective investment in real estate (OPCI) and venture capital funds (FCPR) in order to encourage their ELTIF 2.0 labelling. This article modifies the conditions of eligibility of funds for the PEA (in connection with the article of the bill which extends the eligibility of ELTIFs to life insurance and PER), to guarantee effective access for savers to these products. .

Finally, section 19 provides for the authorization of the government to legislate by ordinance in order to take various technical measures to modernize the range of French funds.