Year 1998
The Phenix Court Case Back on Lobby Track?
WISE-Paris, September 1998
[Posted September 1998]
The Phenix case turns sour. In Plutonium Investigation n°8 we had given some information concerning the opposition to the operation of the Phenix fast-breeder reactor (FBR) at Marcoule, France. At the end of May 1998, Forum Plutonium has made three "requests" against the licensing of the reactor, which was issued by the French Nuclear Safety Authority DSIN. The requests concern 1) the formal cancellation of the license, 2) a delay to the application of the license and 3) a suspension of the license. Different decisions have already been made by administrative courts concerning the complaints; none has been positive to the case. As we already reported, on 22 June 1998 the local Court of Montpellier decided that it was not competent on the matter itself and transmitted the dossier to the highest French administrative court (the Conseil d'Etat).
At the same time, both the CEA, which operates the reactor, and the Secretary of State for Industry, which is the member of the Government who is responsible for the plant, had given their comments concerning the Forum Plutonium's complaints to the Montpellier court. Respecting the procedures, the Forum Plutonium has replied to these comments. The soundness of the original complaints did not seem modified.
Since then, two new decisions have been made. On 1 July 1998, the President of the "Contentious" section of the State Conseil d'Etat decided that the Paris Administrative Court was competent for the judgement concerning the three complaints. This decision was analysed by the Forum Plutonium as being a centralisation from a local court to a court which can be influenced by the Paris-based Government. The Forum Plutonium's lawyer states that the competent court should be the local court which is responsible for the region in which the installation is located.
The second decision, which was taken by the Paris Administrative Court on 23 July 1998, simply stated that the two complaints which concern the delay to the execution of the plant's license and the suspension of the license are pointless. Stating that since "the installation has already started operation according to the decision which is attacked", the "attacked decision" (i.e. the licensing) must be considered as entirely executed at the date of the Court's decision. Therefore the complaint concerning the "delay to the decision" is pointless.
Following this, in an astounding decision, considering that any decision concerning the suspension of licensing does not have any effect after a decision has been made concerning the delay to the execution of the licensing, the Administrative Court states that the complaint concerning the suspension of the licensing would also be pointless.
The Forum Plutonium has already reacted to this double decision by the Paris Administrative Court. In an appeal to the decision which was sent to the Administrative Court of Appeal at the beginning of August, the Forum Plutonium states that the Safety Authorities' license, which is valid until 2004, is not entirely executed. Furthermore, the Administrative Court is not competent to deciding that the complaints are pointless since the points are not incontestable and since the Court has not organised a hearing nor requested the opinion of the Forum Plutonium. Note that the two first complaints (requetes) which were brushed aside by the Administrative Court of Paris and which concern delaying and suspending the execution of the licensing are complaints which are meant to go through a quick judicial procedure. It is therefore plausible that the Administrative Court of Appeal could make its decision shortly.
The remaining complaint concerns the formal cancellation of the license. There is no regulatory timing for this complaint to be dealt with by the Administrative Court. It would however be logical that concerning a dangerous installation this court also make its decision shortly.
The current situation of the whole dossier suggests that while a confidential analysis for the Governement had shown the Forum Plutonium's legal basis for the complaints to be sound (Cf. Plutonium Investigation n°8 ), the administrative courts seem to be under pressure and not respecting the usual procedures. It looks as if the Government wants Phenix to be operated. Or has the deal been that the shut-down of Superphenix would be blocked in the pipeline as long as Phenix did not get the go-ahead?
Contact: Forum Plutonium, Jean-Pierre Morichaud (secretary), Les Oliviers, F-26110 Venterol, Tel: +33 (0)4 7527 9767 - Fax: +33 (0)4 7527 9846
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