Project risks : actions around uncertainty in urban planning and infrastructure development 9781119421757, 1119421756, 9781119671114, 1119671116, 9781786301840

Table of contents :
Content: The Uncertain Environment of Project Planning and Production Process --
How Can We Define Uncertainties and Risks? Risk from a Theoretical Point of View --
Diachronic Approach to Taking Risks and Uncertainties into Account in Planning, Consultation, Evaluation, Financing, and Project Implementation Practices --
How do Risks Manifest Themselves in Projects? --
Addressing or Taking Advantage of Risks Allows Actors to Build Power Relationships --
The Paradoxes of Project Planning and Management --
Conclusion: Ways Forward for Action --
The Identification, Evaluation, Prioritization and Treatment of Risk by the Project Owner, Developer or Promoter --
Glossary of Terms.

Citation preview

Table of Contents Cover Introduction 1 The Uncertain Environment of Project Planning and Production Process 1.1. A risk society? 1.2. Globalization and uncertainty 1.3. The recent economic and financial crisis context 1.4. Environmental uncertainty 1.5. The need for stakeholders in the decision-making process to have access to unlimited information 1.6. The difficulty of making reliable forecasts for planning development projects 1.7. Multi-scalar and multi-objective planning 1.8. Participatory decision-making process and unpredictability 1.9. The social, environmental, and economic performance of the companies that carry out the projects 1.10. Conclusion 2 How Can We Define Uncertainties and Risks? Risk from a Theoretical Point of View 2.1. Risks, uncertainties, hazards: disciplinary definitions 2.2. Territorialized risks 2.3. Risk chains in time and space 2.4. “Expert” risk and perceived risk 2.5. Risk and opportunity 2.6. Uncertainties, risks, and opportunities external to the project 2.7. Internal project risks 2.8. Conclusion 3 Diachronic Approach to Taking Risks and Uncertainties into Account in Planning, Consultation, Evaluation, Financing, and Project Implementation Practices 3.1. Introduction 3.2. From the 1970s to the end of the 1980s: only natural and technological risks were addressed by the texts 3.3. The 1990s: taking into account social uncertainty for major infrastructure projects (transport, energy, etc.) 3.4. 1997 to present: financial risk, risk to the project environment, social uncertainty, political risk, and traffic risk are gradually being integrated into the

assessment process 3.5. Conclusion 4 How do Risks Manifest Themselves in Projects? 4.1. Introduction 4.2. Political risk 4.3. The environmental risk 4.4. Social risk 4.5. Institutional risk 4.6. Archeological risk and heritage enhancement 4.7. Interface risks 4.8. Financial risk 4.9. Are there recurrences in terms of the succession of risks and uncertainties from one project to another? 4.10. Conclusion: behind the risk, the actors 5 Addressing or Taking Advantage of Risks Allows Actors to Build Power Relationships 5.1. Introduction 5.2. Mastering and using areas of uncertainty in the Sociology of Organizations 5.3. Addressing risk and areas of uncertainty to establish power relationships 5.4. Taking advantage of risk to have a source of power 5.5. Conclusion 6 The Paradoxes of Project Planning and Management 6.1. Introduction 6.2. Flexible planning and project management offers opportunities but generates new risks 6.3. An inflation of rules that creates additional risks 6.4. The paradoxes of theoretical reference planning models in relation to contemporary decision-making, planning, and project design practices 6.5. Conclusion Conclusion: Ways Forward for Action Appendix: The Identification, Evaluation, Prioritization and Treatment of Risk by the Project Owner, Developer or Promoter A1. Identification: defining of the types of risk A2. Evaluation A3. Hierarchy

A4. Processing Glossary of Terms References Index End User License Agreement

List of Tables Chapter 1 Table 1.1. Description of project funding types and risk sharing Chapter 2 Table 2.1. Characteristics of social, political, environmental, regulatory, and ... Chapter 3 Table 3.1. Distribution of the types of shareholders within the capital of highw... Table 3.2. Distribution of the types of shareholders in the capital of private h... Table 3.3. Distribution of types of shareholders in the capital of concessionary... Table 3.4. Risk allocation and bonus clauses, penalties, remuneration and missio... Table 3.5. Shareholding of major construction groups holding development concess... Table 3.6. Risk allocation in the case of development concession contracts: risk... Table 3.7. Risk allocation in the case of development concession contracts: prog... Table 3.8. Risk allocation in the case of development concession contracts: risk... Table 3.9. Risk allocation in the case of development concession contracts: proc... Table 3.10. Risk allocation in the case of development concession contracts: ris... Chapter 4 Table 4.1 The disengagement of local authorities from the financing of the South... Table 4.2. Distribution of Brittany–Pays de la Loire HSL financing among partner... Table 4.3. Comparison of planned and actual internal rates of return of HSLs in ... Table 4.4. Evolution of the costs of the Grand Paris Express. Source: Cour des C... Table 4.5. Evolution of provisions for risks in the Grand Paris Express. Source:... Chapter 5 Table 5.1. The process of constructing a territorial problem at risk

Table 5.2. Assigning acceptability levels for the project’s risk to the environm... Table 5.3. Summary of the levels of environmental risk acceptability for each pr... Chapter 6 Table 6.1. The risks of litigation, delay, project termination, and additional c...

List of Illustrations Chapter 4 Figure 4.1. High-speed lines map in 2019 (map: author). LGV stands for Lignes à’... Figure 4.2. View of the works on the South Europe Atlantic HSL in June 2014 (pho... Figure 4.3. The Brittany–Pays de la Loire HSL finished at the end of 2016 (photo... Figure 4.4. Perimeter of the Arena project site from the Arena to Orléans (aeria... Figure 4.5. View of Île Arrault and the racecourse site in 2018 (photo: author) Figure 4.6. View of Île Arrault protected by levees along the Loire (left) and t... Figure 4.7. Aerial photo and boundary of the perimeter subject to public environ... Figure 4.8. Perimeter of the Passerelles project at Joinville-le-Pont (aerial ph... Figure 4.9. Route of the A65 Langon–Pau (map: author) Figure 4.10. Perimeter of the Nonant-Le-Pin non-hazardous waste storage center (... Figure 4.11. Perimeter of the Espace Confluent, Rezé (aerial photo IGN 2013; map... Figure 4.12. Tramway service to the Espace Confluent block in 2018 (photo: autho... Figure 4.13. View of the interior of the Espace Confluent block in 2018. The yel... Figure 4.14. Marketing boards in 2018 (photo: author) Figure 4.15. Perimeter of the Île Seguin operation in Boulogne-Billancourt (aeri... Figure 4.16. The northern end of Île Seguin in March 2016 (photo: author) Figure 4.17. The Seine Musicale under construction in 2016 (photo: author) Figure 4.18. Map of the 50 archeological sites excavated by the LISEA concession... Figure 4.19. Highlighting the results of archeological excavations carried out b...

Figure 4.20. Management of a business interface. The South Europe Atlantic HSL p... Figure 4.21. Map of the Grand Paris Express (map: L. Cazeaux, MRTE) Figure 4.22. View of the construction site of the Noisy Champs front station whe... Figure 4.23. View of the Créteil station construction site on the future line 15... Figure 4.24. Work on Île Seguin in March 2016 (photo: author) Chapter 5 Figure 5.1. Building power relationships in project planning and management Figure 5.2. Wasteland along the railway lines (EuroRennes JDZ site) in July 2015... Figure 5.3. Scope of the Theix Noyalo eco-neighborhood project (aerial photo IGN... Chapter 6 Figure 6.1. Example of landscaping and land movements (visible in the background... Figure 6.2. Bibliothèque station (photo: author) Figure 6.3. The SNCF Est and Météor 2 projects (1988) (map: author) Figure 6.4. The final route of the Meteor and Eole (map: author) Figure 6.5. The skylight of the Saint Lazare station (photo: author)

Series Editor Gilles Pijaudier-Cabot

Project Risks Actions Around Uncertainty in Urban Planning and Infrastructure Development Geneviève Zembri-Mary

First published 2019 in Great Britain and the United States by ISTE Ltd and John Wiley & Sons, Inc. Apart from any fair dealing for the purposes of research or private study, or criticism or review, as permitted under the Copyright, Designs and Patents Act 1988, this publication may only be reproduced, stored or transmitted, in any form or by any means, with the prior permission in writing of the publishers, or in the case of reprographic reproduction in accordance with the terms and licenses issued by the CLA. Enquiries concerning reproduction outside these terms should be sent to the publishers at the undermentioned address: ISTE Ltd 27-37 St George’s Road London SW19 4EU UK www.iste.co.uk John Wiley & Sons, Inc. 111 River Street Hoboken, NJ 07030 USA www.wiley.com © ISTE Ltd 2019 The rights of Geneviève Zembri-Mary to be identified as the author of this work have been asserted by her in accordance with the Copyright, Designs and Patents Act 1988. Library of Congress Control Number: 2019945373 British Library Cataloguing-in-Publication Data A CIP record for this book is available from the British Library ISBN 978-1-78630-184-0

Introduction The planning, design, and implementation of infrastructure, development, and urban planning projects are characterized by traditional project management objectives (time, cost, and quality) as well as multi-sectoral objectives that juxtapose the former. They may concern environmental protection, spatial planning, local development, urban regeneration, accessibility, and so on. The current economic crisis, which no longer ensures easy use of public funding; the increased use of private project financing, led by banks concerned about their return on investment; a growing sensitivity to respect the human and natural environments of projects; and regulatory changes, are placing the issue of risks and uncertainties at the heart of the decision-making, planning and project management process, and we are creating opportunities. DEFINITION OF RISK AND UNCERTAINTY.– We use the following definition to clarify the notions of risk and uncertainty: “Risk is the possibility that events, their resulting impacts and their dynamic interactions will turn out differently than anticipated. Risk is typically viewed as something that can be described in statistical terms, while uncertainty is viewed as something that applies to situations in which potential outcomes and causal forces are not fully understood” (Miller and Lessard 2008, p. 148). It is important to distinguish between uncertainty management, which refers to the precautionary principle, and risk management, which refers to prevention. The precautionary principle implies that actors anticipate the potential risks of a technology or event when they are not known. These uncertainties and risks are multiple. They can be political (in the event of disagreement, sometimes unexpected, between the communities and the project owner who finance the project), social (in the event where associations or the public dispute the project), institutional (in the event of a change in regulations which impacts the project), archeological (in the event of the discovery of a site on the project site), environmental (in the event of the project impacting the natural or human environment), financial (in the event of delays that generate additional costs), commercial, or technical. Uncertainty and risk can also produce opportunities that are organized according to the same typology1.

Uncertainty, risks, opportunities, and management of mega infrastructure projects Research on project uncertainty and risk has emerged in parallel with the development of the use of public–private partnerships. This involves research on megaprojects (notably

transport, electricity production, etc.) but not on more modest urban planning projects (subdivisions, malls, sports and cultural facilities, etc.). The allocation of risks between public and private partners and their monetarization have been the subject of work since the 1990s (Arndt 1998; Faruqi and Smith 1997; Forshaw 1999; Ward et al. 1991). The initial approach evolved toward the development of typologies of risks that could impact the project, and of optimized methods for identifying, analyzing, reducing, avoiding, or transferring risks (Grimsey and Lewis 2002), and then toward methods for evaluating complex interplay of actors specific to planning (Macharis and Nijkamp 2013). Beyond that, research has also focused on taking into account unforeseen events such as conflicts in the conduct of long-term public–private partnership contracts (Gould 1998). A field of research has also been opened up on cooperation between actors within the framework of partnership contracts (Campbell and Harris 1993; Siemiatycki 2013). Bent Flyvbjerg et al. (2003) have shown the risks inherent in major projects (Channel Tunnel, airports, dams, etc.). They link them to the difficulty of predicting construction costs and to more difficult planning due to changing investor and resident demand. According to them, the main risk is that the main purpose of these major projects may be diverted because of the poor compatibility between financial rationality driven by private investors and social and environmental objectives. This work was carried out using an economic approach. More recently, research has focused on the decision-making process that accompanies the planning and design of major projects. In particular, work focused on the adaptation of planning modalities by actors and the impact of democracy on the progress of this process (Priemus and Van Wee 2013). The consideration of risks and uncertainties in the planning, evaluation, and design of transport projects was the subject of international research2 led by University College London (Bartlett School of Planning) between 2006 and 2013. This research made it possible to identify a set of good practices for risk analysis and treatment based on a review of the decision-making process of 30 transport infrastructure projects in 10 countries in Europe, Asia, and America. The central research question aimed to define what constitutes a successful project in relation to traditional criteria of time, cost, and quality and in relation to the context of the project (objectives emerging as the project progresses, social, political, and environmental change, different and evolving visions of the different actors, etc.). The analysis of the decision-making and planning process of these projects has made it possible to identify “good practices” to deal with the risks and uncertainties resulting from the evolving nature of the projects and their contexts. We retain those relating to the different categories of actors (OMEGA 2012): – overall, the lessons learned from the case studies suggest the need for concerted action among partners, including a change in project thinking and development processes; – policies can lead to changes in schemes and programs in relation to the context and to the consideration of projects as open systems that are likely to be exposed to risks and uncertainties;

– public partners can play an important role in assessing the key factors that can play a role in the success or failure of the project; – private actors can share their knowledge of planning and evaluation of major projects acquired through their various experiences, especially if the project is financed by public funds. They can also participate in the preparation and testing of different context scenarios to facilitate the development of adaptable and robust plans and programs. The research is mainly economic or highlights good operational practices (project management and project evaluation) for mega infrastructure projects.

Uncertainty as a potential for action in urban planning In urban planning, research has gradually focused on uncertainty as a source of opportunity, proposing the course of action. In a chapter entitled L’urbanisme dans l’incertitude published in 2004, Yves Chalas showed that “weak thinking” underlay the design of cities. This “weak thinking” is based on “uncertainty”, “movement”, and “incompleteness”. Uncertainty influences the identification of problems, decisions, and the values that motivate them. Movement means that contemporary solutions are not necessarily those of the past, that it is difficult to identify problems and appropriate solutions, and that innovation is needed instead. The incompleteness shows that uncertainty prevails and the objectives defined at the outset for projects are not always achieved. This “weak thinking” is potentially action-oriented. It is based on consultation and participation, is more strategic than interventionist, and leaves out models, as opposed to “strong thinking”. After this formalization of the role of uncertainty in urban production in the early 2000s, Alain Bourdin (2014) developed the idea of uncertainty as a driving force for action in urban planning. In particular, he explains that the uncertainties encountered by metropolises and their stakeholders may be the evolution of urban uses, technical innovations, changes in economic actors, and so on. The answer to this context does not seem to be a multiplication of norms and procedures that are not very flexible, but rather an acculturation of the public sphere to risk3. In the same vein, Inès Ramirez Cobo’s thesis (2016) considers uncertainty as a source of opportunity and not as a constraint. The thesis proposes a theoretical and operational reflection on the planning and design of the city in the form of an open stochastic urban project (SUP) instead of the classical urban project. The SUP is based, for example, on “permeable” and not “closed” roles of actors, “superimposed” and not “sequential” actions, “open” and not “standardized” methods, a “shared” vision and construction of objectives, and “flexible” and not “mandatory” indications (p. 408).

Urban planning research proposes a general reflection on the role of uncertainty in the design of projects and courses of action oriented toward the development of a project risk culture among public actors and a collaborative project approach which is less standardized and open. On the other hand, this reflection does not address “risk” and the transition from uncertainty to risk, by falling into the black box of actors’ interplay (identification, perception, construction, risk negotiation, risk-based power relations, etc.), the consequences of risk, measurement tools (impact, severity, etc.), and the different types of risks that urban projects may encounter.

Territorialized risks and planning The notion of “territorialized risk” appeared in the literature during the 1990s (Galland 1998). This is a risk that reveals conflicting interests “particularly around urban planning issues, as is the case with the technological risks generated by a particular hazardous industrial site (e.g. chemical plant)” (November 2010). There may be the interests of industrialists who wish to build and operate a plant, those of elected officials who may be in favor of the project if it creates employment but who may be against it if it is potentially dangerous, those of local residents who may be bothered by nuisances, the prospect of a devaluation of their property, the threat of a health risk, or those of nature protection associations. Stakeholders do not represent risk in the same way. Territorialized risk involves two ways of accounting for the threat: identification by measurement (made by the expert) and unmeasured perception (by the layman), to which society attaches increasing importance and trust (Slovic 1981, cited by Kermisch 2010) and in which research is increasingly interested under the influence of “constructivist” works (Coanus et al. 1999; Faugères and Vasarhelyi 1988). The transition from a right to information to a right to participation in decision-making processes (Lascoumes and Le Bourhis 1998) also facilitates the expression of perceived risks. Work has focused, in particular, on technological and natural risks since the 1980s and the problems of urbanization in the vicinity of and within these sites, or the prevention of these risks (Gralepois 2012; Propeck-Zimmermann et al. 2007; Sierra 2004; Veyret 2003 and 2004), vulnerability (Ercole 1994; Gleyze and Reghezza 2007; Reghezza 2006, 2009; Rufat 2007), and resilience. Territorialized risk also involves the notion of negotiating risks between actors (Gralepois 2012; Osadtchy 2014; Suraud et al. 2009), acceptance thresholds (Bernier 2007), and risk management practices, standards, and compensation. The construction and negotiation of a risk depend on the degree of threat that individuals give to an event (Veyret and Reghezza 2005). Geographical approaches to technological and natural risks have provided much work on this subject.

Research on territorialized risks focuses, in particular, on natural and technological risks. The research addresses project risks in a comprehensive manner, without going into each type of risk in depth, for mega infrastructure projects only. It does not address the project risks of urban planning operations and in the form of territorialized risks, involving stakeholders, whether for infrastructure or urban planning projects. Nor has it worked on the types of opportunities that can correspond to each type of risk.

Positioning of the book This book focuses on project risks and therefore not on natural and technological risks, which have already been addressed by a large body of literature. Development operations located in areas of natural risk are therefore excluded. It deals on an equal footing with mega transport projects and urban planning projects of all kinds, as common developments can be observed in the role that risk can have in formal and informal planning, design, and implementation practices and in the interplay of actors. Project planning and development are approached as two interdependent processes. The schéma de cohérence territoriale (SCOT, a French territorial coherence scheme), the schéma régional des infrastructures et des transports (SRIT, the French regional infrastructure and transport scheme), and the reports of the French Infrastructure Policy Commission can be drawn up initially and then updated according to the evolution of a joint development zone (JDZ) or urban planning project and the evolution of internal rates of return or the need to carry out a given transport project. Today, many factors develop risk and uncertainty as a reference in project planning, socioeconomic assessment, environmental assessment, consultation, financing, and production. Projects (especially in the case of contractualization) must value cost, deadline, and quality objectives, which put risk management at the heart of project management practices. There are many legal texts on the prevention of risks of all kinds, the limitation of the impacts of projects on natural and human environments, the preservation of natural sites and species, public participation, or deepening of studies. In addition, stakeholders play an important role in defining a project’s impacts, acceptable or not, on the environment, and therefore in describing what may pose a risk during the consultation process. Risk aversion is a constant, both in the banking sector and among investors (for whom the return on investment is important), as well as within civil society. It is more sensitive to risk, particularly to health risks or to natural and human environments, in parallel with a greater trust placed by society in the perceived risk. Events that are considered as a potential risk according to regulatory rules or standards are diversifying. Uncertainty and risk can be measured by the expert or perceived by the “layman”. The risk

(with its acceptability threshold) can be constructed and negotiated. This process developed initially with a societal awareness of technological and natural risks and then with an awareness of project risks. In the case of planning development projects, stakeholders can identify a territorial problem (such as an impact on the natural environment), pose it as an issue in the decision-making process, and possibly erect it as an uncertainty or even a risk if they consider that this problem may represent a threat to the ideas they defend (such as environmental protection) or their living environment. Risk can also be addressed through a process of identification, analysis, and control/transfer/avoidance. This role generally falls to the project owner or developer and sometimes to associations with the production of counterexpertise. Finally, risk can be used by actors to bring an issue (particularly territorial) into the debate and negotiation and thus defend a position or interests in relation to the project so as to accelerate not only the project and its implementation, but also its development, its blocking, or its cancellation. The risk then makes it possible to identify a favorable opportunity for the actors who bear it. It can also be used by the latter for the same purposes. This book formalizes this paradigm shift and the evolution of the formal and informal practices of the actors who accompanied it. How do planning, environmental, socioeconomic, and financial assessment, consultation, financing methods, and project management increasingly integrate project uncertainties and risks? How have the informal practices of actors (associations, inhabitants, elected officials, contracting authorities, developers, etc.) evolved? How do they identify or perceive areas of uncertainty? How do they negotiate (or not) a level of acceptability? How do they seek to take advantage of the risk to defend their views or interests in relation to the project? What power relations do the treatment and use of risk create for the actors? These paradigm shifts and contemporary practices also lead to paradoxes in project planning and progress as additional uncertainties emerge, partly related to litigation and procedures. These paradoxes raise questions about projects’ territorialization practices, risk-taking in planning by the private, public, or associative sectors, the responsibility of stakeholders, and the societal and political choices to be made and followed between the implementation of (sometimes ambitious) projects and the protection of the environment.

Structure of the book Chapter 1 formalizes the current uncertain context of project planning and management. In particular, it explains the influence of globalization on the practices of professionals, the influence of the economic and financial crisis on mobility and the demand of households and companies, on the phasing of projects, or on the use of private financing or contractualization. Environmental uncertainties, which explain a higher risk sensitivity, are analyzed. Uncertainty also depends on human factors, including information given to the public and how it is perceived. Finally, uncertainty also comes from the difficulty experts have in producing reliable forecasts (demographic, economic, traffic, etc.) to plan a project,

the multiple interests of the actors involved, and the unpredictability of the consultation, which can lead to the acceptance of the project (possibly subject to conditions), a solvent controversy, or a potentially obstructing dispute. Chapter 2 defines the uncertainties, hazards, and risks from a theoretical point of view. A general approach to uncertainty and risk is presented first. These notions are defined in geography (section 2.1.1), project management (section 2.1.2), and economics (section 2.1.3). A large part is devoted to the relationship between risk, territory, and actors by addressing territorialized risk, which refers to a negotiated conception of risk and the different interests of the actors, the risk chains in time and space, the risk identified, and the perceived risk. The production of opportunities is also processed. More specifically, the chapter then defines types of risks and opportunities external to the project (political and social risks and opportunities related to the choices and behaviors of households and companies, regulatory, archeological, environmental, technical, natural, market-related, force majeure, etc.) and types of risks internal to the project (construction, delay, financial, and commercial). Chapter 3 provides a diachronic analysis of socio-economic, environmental, financial, consultation, contractualization, financing, and implementation practices for development, infrastructure, and urban planning projects. These have been integrating uncertainty and risk since the 1990s and, as much as possible, making projects less susceptible to attack and better integrated into their natural and human environments. These developments have resulted in more regulations and have required more in-depth studies while opening up the decision-making process more to the public. Chapter 4 describes the analysis of 10 case studies of major transport projects in France (high-speed lines and highways), JDZs, a non-hazardous waste sorting center, and sports and cultural equipment, all of which have been used to deal with risks and uncertainties of all kinds. For each case study, the chapter shows the origin of environmental, political, social, economic, financial, regulatory, and technical (predictable or unforeseeable, favorable or unfavorable) events that the stakeholders considered to be an uncertainty, risk, or opportunity, their construction over time, as well as their impact on the project (blockage, delay, overspending, and modification) and the related actors’ actions. Chapter 5 develops and formalizes these sets of actors who have been trained to deal with risk through formal or informal practices and/or to create areas of uncertainty (e.g. through issues of territories that are at risk) and use them to promote or defend a position in relation to the project. The chapter first frames the contributions of the Sociology of Organizations on the role of uncertainty in the relationships that actors can maintain between themselves. It then analyzes the practices of actors to deal with risk or use it to their advantage (risk construction, unpredictable behavior, etc.), and the power relations that these practices allow the actors to establish between themselves to demonstrate their interests. This analysis is based on the case studies in Chapter 4 and the legal framework for considering risk in assessment, consultation, and financing practices in Chapter 3. Chapter 6 deals with the paradoxes of these practices. It shows that they are both flexible and

under the constraint of many regulations, particularly environmental ones. There are two such paradoxes: while formal practices integrate uncertainty and risk to make projects more achievable, other uncertainties and risks emerge. While project planning seems to be part of a collaborative context between actors and seeks to make projects less susceptible to attack, relationships that are not collaborative appear in the form of disputes, zones to be defended, or virulent oppositions, even against very local projects. These paradoxes raise questions about contemporary planning and project management practices.

Methodology The information comes from interviews with those involved in managing public and private projects, associations, representatives of local authorities, local public development companies, private developers, and promoters. These interviews (30 in total) resulted in the production of a corpus of transcripts of about 600 pages, sometimes with confidential content. We used the semi-directive interview method with a questionnaire based on the following themes: – interviews on the types of risks identified by the experts and on the impact and severity of these risks by using an assessment scale; – interviews with the project owners, associations, and residents on the opportunities produced by the hazard (modification of the project, new consultation, better consideration of the environment, etc.); – interviews on risk management. These interviews focused on methods and procedures for identifying and dealing with risk (environmental and socio-economic assessment, consultation, risk matrix, risk management, etc.) with public and private contracting authorities. The interviews were also intended to analyze the effectiveness of methods to identify, analyze, and treat the risk or find an opportunity; – interviews on how the stakeholders are taking advantage of the risk. The purpose of these interviews was to find out the nature of the territorial issues raised by the project and identified by the inhabitants, elected officials, or associations. The interviews were also useful to know the risks perceived by these actors in relation to the issues, assessing the impact and seriousness of these risks and understanding the relationship between the perceived risks and the interests of the actors; – interviews on power relations. Owners may seek to control risk in order to carry out a project. Elected officials, associations, and residents can take advantage of the risk to make the project evolve according to their interests. The interviews with the three types of actors aimed to analyze the power relations created by the control and use of risk (periods of agreement, coalitions, conflicts, opposition, negotiations, etc. between actors) and the impact of these power relations on the project (new consultation, modification, blocking, delay, etc.). The people we met belong to the Vinci, Eiffage, and Bouygues groups (and their

subsidiaries), member associations of France Nature Environnement, SNCF Réseau (formerly RFF), RATP, SNCF Mobilité, Ingerop, Espelia, universities, local authorities, and local public development companies. The information also comes from the existing literature: – for transport infrastructure: public inquiry files, impact studies, socio-economic assessments, LOTI assessments, audit reports of the Conseil général des Ponts et Chaussées, assessments produced by the Mission d’assistance aux partenariats public– privé, ministerial decisions, communiqués from associations for nature protection, environmental protection, and site protection; – for JDZs and urban planning operations or public infrastructure projects: file on the creation of JDZs, impact study, public inquiry file, local and regional press, press releases from associations, minutes of general assemblies of local associations, local bylaws, decisions of the administrative court, and minutes of municipal councils’ deliberations. Some limitations of the exercise are as follows. In the case of transport infrastructure, stakeholders were asked about periods 10, 15, or 20 years ago. They did not necessarily remember exactly the details of the vicissitudes of a decision-making process, the hazards of a project, the actors involved, and the details of the working methods used. Anachronisms may also have been unintentionally committed. The crossing of sources was, therefore, essential. In addition, two trends can be noted for these individual interviews. On the one hand, some parts of the interview may lead to a rationalization or a subsequent reconstruction of the decision-making process that needs to be monitored. On the other hand, some parts of the decision-making process, often old, can be swept away quickly during the interview because of the lack of precise memory of facts known some time ago. In this case, we can refer to the official documents of the decisionmaking process – ministerial decisions, studies, public inquiry files, and commissioner– investigators’ reports – which provide guidelines for the decision but not necessarily “the background” or details of the process. However, the information obtained for the recent phases – generally since 2005 – is quite detailed on the events that marked them. The subject of risks, their identification, and their treatment may relate to crisis situations or events on which a private company or the services of the State or a municipality do not want to communicate for legal, economic, or communication strategy reasons. For example, a legal recourse may be ongoing, discreet political interventions may have taken place, financial negotiation has been difficult, or an arrangement has not been made for the benefit of one of the partners. As we were interested in the positions and risk perception of actors with very diverse interests (associations for the protection of nature, the protection of a site, and the protection of the environment; elected officials; public and private contracting authorities; promoters; developers, etc.), it was also necessary to maintain an objective view of statements made from time to time by activists or corporate representatives, which may be the result of

external communication work in a crisis situation or which ensure the image of a company or an event. In this case, we have tried to either report these positions when it may be useful for the demonstration, or not refer to them. 1 This typology is developed in Chapter 2. 2 This research is entitled: Mega projects and mega risks: Lessons for decision-makers through a comparative analysis of selected large scale transport infrastructure projects in Europe, USA and Asia Pacific. It was funded by the Volvo Research and Education Foundation. It was based on approximately 500 interviews with practitioners who worked on these projects between 2006 and 2013. 3 Source: verbatim from Alain Bourdin’s conference at Club Ville et Aménagement on May 21, 2014.

1 The Uncertain Environment of Project Planning and Production Process 1.1. A risk society? In a reference book, Ulrich Beck (2003) defines what he calls the “risk society”. He developed the idea that society had moved from a distribution of wealth (a class society) to a distribution of risks from the 1870s onward, under the influence of technological progress and the rationalization of work and organizations (Fordism, Taylorism, and Lean management). This modernization would also pertain to lifestyles, forms of political participation, and so on. Modernization would produce changes, uncertainty, and, therefore, risks for society, which does not have sufficient knowledge to limit the impact of changes. This notion of uncertainty and concern among the public is also due to the current triple economic, environmental, and social crises. This context would put the notion of risk at the forefront of the decision. The risks would be globalized. They would concern all social classes, fauna, and flora (e.g. impacted by technological risk) on a global scale, which appears with, for example, the storage of nuclear waste and global warming. For Beck, there are always more risks because the definition of a risk depends on the perception of the society and the importance it gives to it. If a risk is defined in terms of subjective criteria of fear or mistrust, the term can also be used by pressure groups that can exploit fear in the form of a risk trying to win a case. The role of the media should be highlighted in this process, as a relay of collective fears, a factor that amplifies these fears, or a forum for exposing the risks expressed by groups or lobbies. Jérôme Méric et al. (2009) criticize this characterization of our current society as a risk society. They argue that while probabilities are widely used today, fear and risk predate our contemporary societies and that U. Beck forgot to take into account the history of humanity, through which other great fears are found, to base his theory. Our current society cannot, therefore, be more of a risk-taking society than before. The authors hypothesize that “risk is a momentary form of the relationship maintained by ‘modern’ society between its fears and money”. A risk economy is being developed, based on risk insurance and risk control (reinforced by the subprime crisis), which allows an organization to resell its best practices as soon as it finds its emergence from a crisis. The authors note that risk management takes an increasingly important place in organizations today. Services dedicated to this function are created. Risk management refers to particular values, specific procedures, and a sense of performance. Risk prevention can be compared to a market commodity, which organizations may have an interest in selling. The risk society creates fears, stages them (e.g. in the media), and sells them when it presents itself to control them.

Does this “risk society” play a role in the more circumscribed field of planning and production of development projects? The answer to this question can be considered as positive. It is based on the two previous positions. On the one hand, the mistrust of certain associative or political groups in France toward technical progress in general (the development of nuclear power and the use of genetically modified organisms) have been led to the development since the 1970s of a political ecological discourse that advocates reasoned economic growth and a refusal to accept infrastructures and equipment that are likely to have a negative impact on the environment. The impact of this discourse is reinforced by sustainable development objectives (limits on greenhouse gas emissions and policies for the densification of urbanization) which are now included in the legislative corpus of some countries (to mention in the French case only the so-called Grenelle 2 Law No. 2010-788 of July 12, 2010 on national environmental commitment). Moreover, consultation procedures appear to be tools intended to facilitate public information and the consideration of the public’s opinion in a broad sense in a decision-making process that was originally the domain of the expert and the politician. They can also be perceived by project owners as a tool to limit the risk of opposition to a project. This was the case with the consultation of the TGV Mediterranean, which had the effect of interrupting the project between 1990 and 1992 and led to another route with more tunnels for environmental reasons and because of the refusal of local residents to suffer the nuisances generated by the project. Financial risk assessment is part of developing public–private partnership contracts and concession agreements for urban development. International construction groups sell technical solutions and know-how that guarantee, as far as possible, compliance with the clauses of the contract (deadlines, costs, and project characteristics). Insurance also plays a role in these contracts, for example, to cover a technical risk. A risk economy in the sense of Méric et al. (2009), therefore, seems to exist. Is it based on fears created by society? There is a risk aversion on the part of banks that lend capital to project owners for these projects. The mistrust that a technical project can generate among the public or elected officials is also likely to be based on fear (such as nuisances, the price of tolls for the household budget, the partial loss of turnover for traders penalized by public works, etc.).

1.2. Globalization and uncertainty Globalization is characterized by a reduction in obstacles to international trade, such as customs duties, transport costs, and the development of means of communication. Companies also tend to develop strategies on an international or even global scale, for the production and marketing of their products or services. It is accompanied by economic reforms (such as competition), an increased role for international economic institutions, changes in the capital structure of companies (which led to a stronger shareholders’ role), or productive strategies in a context of greater competition.

However, globalization can create uncertainties for economic activities. Economic growth is characterized, in particular, by an emphasis on the rate of returns on capital and strong competition in the context of internationalization of markets. The inconstancy of financial markets, which are subject to multiple constraints, can become a factor of uncertainty for both companies and employees (Plihon 2002). This context makes the environment less predictable. Rapid irreversible changes can generate instability for the planner, project owner, or construction company. Planning can be conducted in the context of rapid socio-economic changes in cities. For example, what planner knows if a company in a business park will not have been relocated six months or two years later? How can the flexibility of business location be taken into account in planning? How can we accurately estimate flows for future transport projects in 10 or 20 years when it is difficult to establish assumptions about the evolution of socioeconomic conditions? Construction and public works companies that respond to calls for tenders for partnership or concession contracts, such as Vinci, Eiffage, and Bouygues (French companies), operate on an international basis. This leads them to respond to calls for tenders all over the world. The multiplication of project management or operation of similar projects leads them to standardize their working methods – which also reassures banks. This allows them to rationalize costs to be more competitive. Knowledge and feedback can help reduce uncertainty around projects. However, financial market volatility can increase market risks. The price of raw materials required by the site may vary according to the volatility of financial markets and speculation strategies, which are not necessarily identifiable in advance.

1.3. The recent economic and financial crisis context A crisis context, as we experienced in the years 2007–2014, can influence planning in several ways.

1.3.1. Crisis and mobility practices Economic conditions can influence household incomes, and therefore their mobility practices, choice of modes of transport, or reasons for travel. For example, the decrease in the income of some peripheral private car-using households causes them to group their trips together to limit their mileage, avoid commuting to and from home, and consume less fuel or encourage them to carpool. This drop in income may also encourage households to limit their travel for chosen reasons (shopping, leisure, social life, etc.) and to use the car only for forced travel (work, studies, etc.) (Motte-Baumvol et al. 2012, p. 49). There is also a tendency for some households to use public transport rather than cars due to rising fuel prices. These findings, if confirmed in the future, could encourage local transport policies in remote peri-urban areas to strengthen adapted public transport services (on-demand transport or low-

capacity feeder transport services toward main stations).

1.3.2. A wait-and-see demand from households The crisis context can influence household demand. Their decisions to consume and invest may depend on the expectation of a future reduction in their income or uncertain income prospects. In this case, households tend to build up precautionary savings. For example, INSEE (French Institute of Statistics and Economy) has two tools at its disposal to report on these behaviors and choices: the unemployment rate and a survey on households’ perception of the current and anticipated economic situation. In France, household demand (measured by consumption expenditure and investment) fell during the last crisis. It has been gradually recovering since 2016. Logically, it has an impact on housing construction. Between 2000 and 2007, household consumption grew by +0.5% per quarter, then by only 0.1% per quarter between 2008 and 20121. In the third quarter of 2016, household consumption stagnated and increased slightly at the end of 2017 (+0.6% after +0.3%)2. Household investment increased sharply from the beginning of 2016 (e.g. +0.6% in the third quarter) after 4 years of decline. This trend continued in 2017. But it can be noted that new home sales have not increased since the beginning of 2017 (after two years of increase). The number of building permits is stabilizing. Due to the delays between authorization and construction, INSEE believes that household investment should slow down3.

1.3.3. The volatility of business locations The crisis and uncertainty about demand can also influence companies’ location choices. Cost reduction remains an important factor in competitiveness and price competition, but is no longer addressed by companies with lower production and transport costs. Companies are also looking for more flexibility, for which they expect support from the territories in which they operate. This flexibility is primarily logistical and consists in choosing an optimal location according to the location of customers and suppliers, their importance, and their geographical proximity. Flexibility also concerns strategic mobility, which allows the company to consider reconversion or diversification (Moati et al. 2001). This business volatility can make it more complex to plan business parks in urban planning documents in some municipalities and call into question their financial and commercial success.

1.3.4. The impact of the crisis on the phasing of infrastructure projects The scarcity of budgetary resources causes the French State and governments of other countries and local authorities to delay or achieve in stages the development and infrastructure projects over a longer period of time.

For example, the October 2011 SNIT4 had forecast a list of investments of €245 billion by 2036; 88 billion was to be covered by the State and 56 billion by local authorities. The report of the Infrastructure Policy Council of February 1, 2018, established three possible scenarios. The first provides for no additional resources to be allocated to the transport sector, the second requires significant funding to be allocated to certain priorities, and the last concerns an acceleration of investment. The report does not make a choice between scenarios, but the guidelines focus on the maintenance and improvement of existing networks, the treatment of railway nodes and the improvement of road access to the most isolated territories in a context of constrained national and local public funding. The financing of these new orientations is based on two scenarios. The first is based on maintaining the resources of the Agence de financement des infrastructures de transport (AFIT)5 and provides the funding of €30 billion for road and rail network modernization works and €10 billion for new projects by 2030. The second scenario is based on an increase in the agency’s resources and provides the funding of €30 billion for modernization work and the same amount for new projects at the same time. The planned funding has been divided by 4 between the 2011 SNIT and the 2013 Mobilité 21 report (taking into account the most favorable scenario of the Mobilité 21 report and with fairly close deadlines, i.e. 2036 for the SNIT and 2030 for the Mobilité 21 report). This reduction in the contribution from the national budget helps spread out the implementation of projects over time.

1.3.5. Phasing and flexibility of urban projects Due to the wait-and-see attitude of households and the volatility of corporate strategies, the design and implementation of an urban project, irrespective of its nature (housing, offices, public facilities, shops, etc.) and its size, depend on the phasing of the operation and are often based on the principle of flexibility. Demographics are increasing in many urban areas. However, local authorities do not necessarily know what the socio-demographic composition of the population will be over a period of several years (which is also the time required to carry out a project) or its specific needs. For example, it is difficult to predict the size of purchasing or renting households, the number of children, and real estate investment opportunities. It is also difficult to accurately forecast the demand for offices, commercial premises, and so on. Projects are therefore often carried out piecemeal or in stages to ensure their commercialization. The number of square meters of NFA6 and their nature are determined gradually according to the economic situation. A project that initially has a lot of office NFA can be modulated over time into housing. Similarly, a project with a majority of housing for families can evolve into a project of studios and small areas adapted to changing demographics.

1.3.6. For more flexibility, the project can precede the plan

As a result, project design and implementation are not always, as one might think, phases that follow the development of a plan. Long-term territorial planning in the form of plans, schemes, plan contracts, and so on may overlap over a period of time with the management of national or local development projects. The conduct of projects and the pace of progress of their design and implementation depend not only on the socio-economic context but also on their social acceptability, the quality of the studies, obtaining administrative authorizations, their profitability, and their marketing potential. It can go through phases of stopping, resuming, “breathing”, and so on. Often, a project is launched and the scheme or plan is modified or adapted to integrate the project once its characteristics have been defined based on the previously identified contextual elements (Haëntjens 2010; Zembri-Mary 2014). These projects are also part of specific procedures (public debate, socio-economic and environmental assessment, preliminary studies, preliminary draft (APS), detailed preliminary project (APD), continuous consultation, public inquiry)7. The definition of the project according to these procedures can anticipate the formalization of the plan. Many projects show that the two approaches seem to be intertwined and sometimes inseparable to achieve a successful project. In the case of the EuroRennes JDZ (mixed project of 300,000 m2 of NFA), the SCOT reports a project with broad orientations and the local urban plan (PLU) did not anticipate or foresee all the elements of the project8. The latter evolves, according to demographics, the needs of the inhabitants and the propensity of households to invest. The PLU is then modified, according to the development pace of the stages of the JDZ project9. In general, it can be noted that changes to the PLU have been more frequent in recent years and are made according to the rate of progress of projects and JDZs.

1.3.7. The use of private financing by public–private partnerships In addition, budgetary uncertainty is forcing public authorities to resort to private financing in the form of public–private partnerships after a competitive tendering procedure. The financing of development projects in France can be carried out with public funds under a public works contract or through a public–private partnership contract. The latter may take the form of a concession contract or a partnership contract. Public works contracts are contracts concluded between the State, local authorities or public institutions, and public or private service providers. Their purpose is to design, build a structure, or carry out work. The service provider is remunerated by the public authority (Ordinance No. 2015-899 of July 23, 2015, on public procurement). Public–private partnership contracts were introduced in France by Order No. 2004-559 of June 17, 2004. They enable the State, a public institution dependent on it or a public authority to entrust a third party, for a period determined according to the depreciation period of the investments or the financing methods adopted, with a global mission consisting in financing works or equipment required for the public service; the construction or

transformation of works; the maintenance, upkeep, operation, management; and other services contributing to the public service mission (e.g. traffic regulation). 1.3.7.1. The concession contract The concessions have long been used in France and largely predate the “global” circular of 2004 on public–private partnership contracts. It was used, in particular, for the construction of the first railway lines, then for the construction of the highway network and numerous urban planning and development projects. More recently, pursuant to Order No. 2004-559 of June 17, 2004, concession contracts have been signed with the public works groups Eiffage, Vinci and Bouygues. These include the South Europe Atlantic, Brittany–Pays de la Loire, Perpignan–Figueras high-speed lines (HSLs) and the A65 Langon–Pau highway. There are two types of concession contracts: development concessions and public works concessions. 1.3.7.1.1. The development concession In the case of a development concession, the State, local authorities, and their public establishments “may grant the execution of development operations” to any person who has a “vocation”, private operator, semi-public company (SEM)10 or public (public development establishment, local public company, etc.) (Article 300-4 of the urban planning code). The concessionaire is responsible for project management, studies, land and property acquisition (including expropriation and pre-emption), and marketing of the project. The purpose of the development operation granted, according to Article 300-1 of the urban planning code, is “to implement an urban project, a local housing policy, to organize the maintenance, extension or reception of economic activities, to promote the development of leisure and tourism, to build public facilities or research or higher education premises, to combat unhealthy or substandard or dangerous housing, to allow urban renewal, to safeguard and enhance the built or unbuilt heritage and natural spaces”. The developer is entrusted with many activities (housing, offices, public facilities, etc.) within a significant perimeter. 1.3.7.1.2. Public works concession Public works concession contracts “are administrative contracts whose purpose is to have all building or civil engineering works carried out by a concessionaire whose remuneration consists either in the right to operate the work or in this right together with a price” (Ordinance No. 2009-864 of July 15, 2009, on public works concession contracts). The concessionaire collects commercial revenues such as tolls. The duration of the contract can reach 20 to 30 years or more in the case of major projects (high-speed lines, airports, highways, large stadiums, etc.). The partnership contract, created by Order No. 2004-559 of June 17, 2004, is an “administrative contract under which a public entity entrusts a global mission to a third party for financing, construction or transformation, maintenance, upkeep, and operation or management, in particular of works or equipment necessary for the public service”. The

contract may cover all or part of the design of the structure. It is concluded for a fixed period of time. This definition was supplemented by Order No. 2015-899 of July 23, 2015 on public procurement. The duration of the contract can reach 20 to 30 years. 1.3.7.2. The partnership contract The partnership contract gives rise to “remuneration of the holder of the partnership contract by the public entity throughout the duration of the contract. This remuneration may be linked to performance objectives” (Article 1 of Ordinance No. 2009-864 of July 15, 2009, on public works concession contracts, as amended). The partnership contract primarily concerns complex public service operations (e.g. transport infrastructure) which will be returned to full ownership at the end of the contract. The partner’s missions have expanded to include those of the developer. The partner may be authorized to “value part of the public entity’s domain within the framework of the partnership contract”. It may carry out or have carried out projects by others within the scope of the contract and market or lease them. The revenues are then deducted from the rent paid by the public authority. 1.3.7.3. Risk sharing The identification, analysis, and treatment of risks are essential for private providers because they are obliged to comply with the clauses of the concession contract or partnership contract, in particular, the estimated cost, the deadlines for completion of the work and commissioning phases, and the quality of service objectives. The contract holder must assume financial responsibility for many of the risks provided for in the concession or partnership contract as shown in Table 1.1. It should be noted that the distribution of risks set out in this table may vary from one contract to another depending on the outcome of the negotiations. For example, it is in the private provider’s interest to unblock a conflict situation with local residents because it can lead to delays in work, additional costs, and delays in commissioning. The contracts provide for the payment of penalties to the public authority in the event of noncompliance with the clauses of the contract. For example, the penalty was €800,000 per day of delay in commissioning for the South Europe Atlantic HSL project granted to Vinci11. These penalties are in addition to the loss of toll revenue or fees due to a delay in commissioning. Table 1.1. Description of project funding types and risk sharing

Service provider remuneration

Public funding (public project management) Full funding by public authority

Partnership contract

Concession contract (public works, development, etc.) Rent paid by the public Collection of authority, calculated according commercial revenues to compliance with by the concessionaire.

Contracts

Risks assumed by the public authority Risks assumed by the private service provider

performance criteria. Possibility of marketing works or equipment on lands made available by the public authority (in the case of development operations). Separate short-term The service provider generally contracts with takes charge of the design, different service construction, operation, providers for design maintenance and servicing of construction, the infrastructure. maintenance, and operation. Public authority is in charge of the contracts. All risks. Risk of force majeure. Traffic/frequentation risk. Commercial risk. Political risk, Social risk. Financial risk. Regulatory risk (subject to contract). Technical risk. Geological risk. Operation risk. Maintenance risk.

Revenues related to traffic (HSL, highways, etc.), attendance (stadiums, etc.) or sales (JDZ) The concessionaire generally takes charge of design, construction, operation, maintenance and servicing of the infrastructure. Risk of force majeure

Penalties Yes (delay, noncompliance with contract clauses or performance criteria) Bonus in case Yes of exceeding the contract objectives

Yes

Traffic risk. Commercial risk. Political risk. Social risk. Financial risk. Regulatory risk (subject to contract). Technical risk. Geological risk. Operation risk. Maintenance risk. Yes

Yes

Yes

Performance Yes

Yes

Yes

criteria (quality of service, etc.) Banks that lend part of the capital to private providers exercise control over the latter in order to verify whether the phases of the planning of the construction work – completion of the deck, earthworks, etc. – are valued in relation to the timetable of the financing agreement and whether the commissioning that generates the revenue – toll or fees – will be carried out on the planned date. This control allows the bank to release the loan money necessary to advance the work and complete each contractual step. In the event of non-compliance with this schedule, banks may suspend or reduce the payment of capital. 1.3.7.4. Advantages and disadvantages of using contracts involving a private partner The competitive tendering of service providers allows the public authority to expect them to improve the technical, economic or other performance of the project, or even reduce costs, because of the provider’s ability to standardize their design, planning, construction, and operation procedures over several projects. The private service provider can amortize the costs of design, or even research and development in civil engineering, electrical engineering, and financial engineering on several projects, as is the case for the Vinci, Eiffage, and Bouygues groups, which obtain contracts for similar projects. It will be more difficult for a public authority to do so on a smaller number of projects. The public–private partnership is not subject to the annual limitation of a public budget, which is intended to be used for purposes (e.g. social and economic) other than development and equipment projects. The project may be completed and commissioned more quickly than if it had been financed by public funds, and the availability of which may be delayed. The private service provider may be entrusted by the public authority with multiple activities in the form of a global project (planning, organization of financing, construction, and operation or marketing), which may be appreciated by some local authorities because of the complexity of some projects, or even other tasks independent of construction and operation. These additional tasks may concern, in the case of transport projects, for example, modal shift objectives, traffic management, public lighting management, maintenance of sidewalk flowerbeds, or an urban renewal project linked to the transport project. This type of public– private partnership with diversified objectives is found in Great Britain in particular. The service provider is competent in global project management, which can make it possible to optimize the conditions of implementation and operation by integrating the various phases of project production (design, financing, construction, and operation) within a multi-purpose project team. This practice may have the advantage of facilitating problem-solving, meeting deadlines, costs, and quality objectives. However, overall project management does not

exclude the use of subcontracting, which in this case may have to use the same project management methods as the project owner. Finally, the public–private partnership allows risk sharing between the public and private partners. In contracts, everyone generally assumes the risks for which they are most competent. For example, the construction risk, market risk, operational risk, or service quality risk are generally assumed by the private partner. Whereas the risk associated with a possible natural disaster is assumed by the public authorities. However, the way in which public–private partnerships are designed can be criticized after some feedback. The recent experience of the partnership contract for the collection of the ecotax in France attests to this. The suspension of the collection of this tax forced the State to compensate the operator Ecomouv’ up to €777 million12. The revenue from the new transit toll is likely to be twice as low as expected with the ecotax, suggesting a renegotiation of the contract with Ecomouv’13. SNCF Réseau also questions the effectiveness of this type of financing compared to public financing14. An ex-post analysis of the effectiveness of British Public Finance Initiatives (PFIs15) was carried out by the British Ministry of Finance (Her Majesty’s Treasury and Infrastructure UK 2012–2013), which identified three criticisms. Legally, PFIs are considered to be not very flexible and slow in their implementation due to poor management of the risks of regulatory change and public service management by partners. The clauses exempting these risks in the contract are very complex to implement, which generates a delay in delivering the object of the contract and in exploiting it. Financially, PFIs allow public authorities to remove from their scope of responsibility the debt carried by the company holding the contract. However, this debt is paid by the public authority in the form of a rent that includes all the partner’s costs and margin. The public authority may have an acceptable debt ratio, but may take risks. Finally, the population does not see the usefulness of these PFIs. Criticism of debt write-offs from the public balance sheet is repeated in France (Béteille 2008). If we compare the elements of project financing, borrowing by a public authority may cost less than borrowing by a private company, which may benefit from less attractive rates, due to less secure creditworthiness for the lender than that of a public authority (Cour des Comptes 2008). The level of rent paid by public authorities to the private service provider in the case of a partnership contract is sometimes considered high. It depends on the investment made by the private partner. It is not possible to know the amount of rent for these contracts. The same project management models, based on respect for deadlines, costs, and quality criteria, are beginning to be found indiscriminately in public authorities and private companies, which may limit the interest of the former to use the latter’s services – even if it is difficult for the public authority to gather all the necessary skills for construction and/or operation and to amortize costs on several projects. This observation is less relevant for SNCF Réseau, which is a public company, because it uses the same project and risk management methods as a private construction group. However, SNCF Réseau has longer

deadlines for carrying out a project than private companies which include all the skills because of the additional time required for the award of public contracts which it must respect as a public establishment [pursuant to Law No. 85-704 of July 12, 1985, on public project management and its relationship with the private contracting authority (or MOP law)]. The French concession probably presents less risks than the partnership contract for the public authority because the commercial risk is completely transferred to the concessionaire. However, public works concession contracts may provide for default clauses involving the financial involvement of the grantor. The concession contract for the A65 Langon–Pau highway provides, for example, that in the event of default by the concessionaire, the public authorities shall bear the cost of the takeover – debt still to be repaid, financial costs, operating costs – of the infrastructure. The concessionaire may also then transfer the concession to a second concessionaire if the opportunity arises. SNCF Réseau has not provided for a provision for risk in the event of the Vinci group’s default on the South Europe Atlantic HSL concession in its financial analysis of the project, based on a takeover of the concession by the State16 if this scenario were to arise. The legal literature highlights the uncertainty of the profitability of development operations due to difficult predictability of the pace of commercialization. In practice, in France, developers are often para-public companies (local public companies, semi-public companies, etc.) and not commercial companies. To overcome this problem, Articles R-300-11-1 et seq of the urban planning code provide that the development concession can shift the commercial risk to the public authority, whose tax resources can reassure banks. The partnership contract can then be a solution since its procurement rules correspond to these “false” concessions (Vandepoorter 2014). Finally, in the event of the concessionaire’s bankruptcy, the public authorities may be forced to assume responsibility for the construction and operation of the project. They do not always have these skills, which can represent a risk for them, for the structure and for the viability of the service provided.

1.4. Environmental uncertainty The social emergence of environmental problems is old. For example, the concept of water pollution was scientifically developed in France in the 1870s. Environmental issues related to a technological or environmental risk are the subject of measures, which, even if partial, can alert public opinion, particularly in the event of media coverage. Human activities can have uncertain effects on the human or natural environment. The installation of a chemical plant creates the possibility of an accident (misuse of the products used, technical malfunction, etc.) and emissions harmful to the health of inhabitants, fauna or flora. The construction of a highway disrupts water flow. Environmental uncertainty may involve issues with varying impacts and severity levels. This may include the impact of a high-speed line on the ecosystem or the impact of a chemical or nuclear accident on public

health and the natural environment. This uncertainty can be coupled with issues of irreversibility. The effects of an activity on the environment can be permanent. For example, the level of radioactivity produced by the fusion of a Chernobyl reactor (Ukraine) in 1986 caused an increase in thyroid cancer or leukemia in the population exposed to high levels of radioactivity17. The towns around the power plant were emptied of their inhabitants and abandoned. The weight of development on the groundwater table can also suspend the supply of drinking water to a part of an urban area in a sustainable way. We also know the impact of pollution related to car use (and road infrastructure) on public health (more respiratory problems, even chronic ones, etc.). Populations are more sensitive to these environmental issues (Petit and Herbert 2010), and more easily promote their perception of risks in various forms (media coverage, demonstrations, etc.). This fundamental shift is reinforced by greater confidence in perceived risk than in the risk measured by the expert (Slovic 1981, cited by Kermisch 2010), and by the shift from a right to information to a right to participation in decision-making processes (Lascoumes and Le Bourhis 1998), illustrated by the introduction of public debate in 1995 and more recently by ongoing consultation. The environment can also be an object of uncertainty for several reasons, which tends to reinforce a general feeling of uncertainty in society. It can be difficult to measure. It is up to science to provide a categorical answer to what may represent an environmental uncertainty or risk. This answer can be based on knowledge. However, science is not always able to do this because the environment is a complex object of observation based on a long time. These potential risks may be characterized by a low probability of occurrence, with uncertain consequences in terms of impact and severity. This low frequency makes knowledge partial and makes it difficult to predict the risk, its severity, and impact. Nuclear or industrial accidents can be classified in this category. Knowledge of potential risks also depends on the level of detail of the studies. For example, if the environmental impact study preceding a conventional development project (JDZ, highway, etc.) is not thorough enough, it may forget certain natural species when calculating compensation, and as a result, the reproduction and future of these species could suffer. This represents a threat to nature protection associations, which do not hesitate to know this during the consultation process, in order to obtain an unfavorable opinion from the environmental authority, which will have the effect of blocking the project. The irreversibility of the consequences can cause uncertainty of all the more threatening for society, which may perceive it as particularly serious. We can note here the role of subjectivity, related to representations and perceptions, which can be involved in the assessment of an environmental issue such as risk or uncertainty.

1.5. The need for stakeholders in the decision-making process to have access to unlimited information

According to Simon (1976), imperfect information from decision-makers does not allow them to make a correct diagnosis of a situation or to produce the most appropriate solutions. The actors involved in development projects increase their capacity to access information in order to limit the risks that could arise as a result of imperfect information. The expert may have access to limited information. All consider it useful to carry out further studies of all kinds prior to the declaration of public utility (DUP), but stress the duration of these studies and their cost18. The information required for traffic, demographic, employment, and marketing studies, which require assumptions to be made over a period of several years, may be limited for expertise. There is a discrepancy between the ambitions stated in the texts for the multi-criteria analysis of development or infrastructure projects, the possibilities of access to data and the existence of methods for evaluating the different variants of a project. The importance on multi-criteria analysis in relation to cost-benefit analysis by public decision-making authorities has increased since the publication of the circular of December 9, 2008, of the Ministry of Ecology on the establishment of a quality charter for evaluation. This text highlights the multi-criteria analysis in the evaluation, whereas the 2004 directive19 focused more on cost-benefit analysis. The novelty of this text lies in its resolutely sustainable approach, which bases the evaluation of projects and their variants on the comparison of their social (employment, vulnerable groups, accessibility, social mix), environmental (climate, pollution, noise) and economic (impacts on households and businesses, cost, competitiveness) impacts. The criteria are quite varied. The implementation of the multi-criteria analysis resulting from the circular of December 9, 2008 is not complete in the sense that methods are non-existent or too imprecise to measure certain impacts (such as competitiveness), and in the sense that the limit of certain impacts is not specified, which runs the risk of double counting, particularly with regard to time savings (Quinet 2010). Accessing information is important in the case of partnership relationships. Limited knowledge can affect risk analysis, including cost analysis. A practitioner says: “It is all this work of studies, with risk analysis, but also this work in confidence with the project managers. If they do not show you the assumptions they have made to build the land movements, their costs, you cannot do a risk analysis. You can’t know if they were optimistic when they said we’ll make 90% of the materials, which is completely utopian and in that case it’s in our interest to take large provisions for risks. Either they have been realistic or pessimistic, and therefore you cannot adjust your provisions. I think there is all this analytical work that is extremely important to make costs more reliable20”. The quality of the analysis of the project’s impact on the environment is also important for the project owner. For a practitioner familiar with SNCF Réseau projects, a practitioner says:

“I would say that the biggest environmental risk is having a bad impact study that forgets or does not see a fundamental point, because you do not know how to integrate it into your studies21”. The risk is twofold. It is social because an incomplete impact assessment can lead to a challenge of the public or environmental associations, which have been very attentive to this issue for several decades, and, in particular, since the Grenelle 2 Law No. 2010-788 of July 12, 2010, on a national commitment to the environment, which has strengthened the application of regulations on reducing the ecological impact of infrastructure. On February 11, 2014, the Châlons-en-Champagne Administrative Court annulled the 2011 decree of the Prefect of the Ardennes, which authorized the DREAL22 to carry out hydraulic works on the route of the A304 Charleville-Mézières–Rocroi after an appeal by the France Nature Environnement Association (FNE). The latter noted the absence of measures to avoid, reduce, and compensate for the project’s residual impacts pursuant to Act No. 2006-1772 on water and aquatic environments of December 30, 2006. According to FNE, the project destroyed 200 ha of wetlands, forced 10 rivers to be diverted and led to the destruction of natural species, and so on23. The risk associated with an incomplete impact study is also financial due to the additional costs associated with the possible shutdown of the site. A practitioner says: “The other part is a good impact study to avoid unpleasant surprises that block a site for months, by applying regulatory procedures but whilst giving yourself time to do the most exhaustive impact study possible. The worst thing is not to find something during the impact study and have difficulty converging in consultation on how to deal with the impact. The worst thing is to forget about a protected species and to be confronted with it when carrying out the work, because the procedure must be carried out by stopping the work. Which is extremely expensive24”. In order to improve its information on the presence of emblematic or protected species, SNCF Réseau, for example, has signed an agreement with FNE so that it can access the databases of local associations (whose information is sometimes difficult to obtain). The Eiffage group also works with associations during the consultation process to gain a better understanding of local environmental issues and the species to be included in the impact study, whatever the projects for which it is responsible (JDZ, public equipment, transport infrastructure, etc.). Access to limited technical information can also generate risks for the project owner. A SNCF Réseau practitioner indicates that:

“For example, I had a reference frame with an NPHE (highest water level) dimensioning of engineering structures in floodplains of +50 cm (compared to the highest water level). Why 50? It’s easy to control. Today we say NPHE + x, x being enough so that there is no moisture percolation. But I don’t know how to go about controlling this percolation on an execution plan. And then you can’t judge the variants to see if they are good or not. It has sometimes become too intellectual. The people who make the repositories must put themselves in the shoes of those who use them. Users must be involved. Because otherwise we no longer know how to control the structure25”. The owners may also encounter difficulties in estimating a provision for risks in euros. SNCF Réseau lists a series of risks in its flat-rate and probabilistic risk analysis methods. They are then taken into account or not in each project. Two difficulties arise in this approach: listing the risks in the most exhaustive way possible (which is made possible by a long feedback period) and giving them the most reliable possible value in euros26, which can sometimes be a tricky exercise. Generally, the decision-making process becomes multi-rational. The classic linear decisionmaking process of predict and provide, which consists in predicting the long-term attendance or profitability of a project and using these forecasts as a central decision-making tool, has given way to a more collaborative and strategic decision. A project with its variants is submitted to the whole public and local actors, who can develop a “strategy of suspicion” (Callon et al. 2011). It can also be canceled in certain cases (A24 Lille–Amiens highway, for example, A400 Annemasse–Thonon-les-Bains highway). Or, the public can bring out issues or risks that experts have not thought of, and that can change the technical characteristics of the project. These changes sometimes require studies to be redesigned. The absence of a public debate conducted by the National Commission for Public Debate (CNDP) for the implementation of the A65 Langon–Pau highway prevented associations and the interested public from accessing all the information they would have liked to obtain. Associations may consider that the lack of information or public debate does not shed light on all the environmental constraints of the project. One community interlocutor said: “The public has spoken out on a project without being aware of the real impacts on nature and the environment. This was a shortcoming”27. In this context, the decision-making process for development projects meets a greater need for transparency, knowledge, and trust. Sharing technical, economic, social, and other knowledge can be useful between project partners to avoid risky situations. The transparency of the results of the studies and the reasons for the decision makes it possible to legitimize this decision to the public, especially if they are suspicious of the project. Trust between private partners, or between private and public partners, or between the owner and the public (which is less easy to obtain) is also useful to facilitate the decision-making process. For example, Eiffage points out that it does not have access to SNCF Réseau’s28 technical reference system for the construction of the Brittany–Pays de la Loire29 HSL. On the scale of urban projects, we can cite the example of the Elbe Philharmonic in Hamburg. In 2005, the

CDU municipal team placed an order for this building with the construction company Hochtief on the basis of fairly detailed specifications but without the final plans. This approximate nature of the order allowed the project owner to take certain liberties with the project, but whilst concealing certain risks and technical problems. In particular, the foundations proved too fragile, which almost tripled the cost of the project and provoked a strong protest from opposition politicians and part of the population30. Finally, the use of imperfect information may also be voluntary. Flyvbjerg et al. (2008) developed the idea, based on the case of the Fehmarn Belt fixed link between Denmark and Germany, that the methods are not necessarily bad and the data inadequate. The observed differences between forecast and actual costs, and between forecast and actual revenues, cannot be explained only by a difficulty in predicting the future but also by a willingness of the project promoters to “fix” the forecasts to make the projects succeed. According to the authors, this attitude can be observed because the elected representatives of the forecast period will no longer answer for false forecasts when the project will be in service. Lobby groups can promote the project without having to bear the risks and costs. In addition, it is in the interest of the contractors of a call for tenders to pass their project. Anonymous interlocutors indicate that the attendance or traffic forecasts and the internal rate of return of projects could thus be reviewed in order to make them acceptable during the consultation and to politically justify the project. The calculation methods were used and the results were correct. But the assumptions about GDP trends, traffic trends, ridership, and so on were wrong. This deliberately imperfect information finally makes it possible to limit the risks that the project decision-making process may encounter. For example, both RATP and SNCF31 have underestimated the cost of the automatic metro Météor (RATP project) and the regional train line Eole (SNCF project) projects in Île-deFrance, in order to prioritize their project over the competing project (Zembri-Mary 2010).

1.6. The difficulty of making reliable forecasts for planning development projects Planning development projects is a long-term exercise. The French tradition of the scheme and plan (SNIT, Mobilité 2132 report, SCOT, PLU, etc.) makes it possible to know the projects envisaged at each scale. The opportunity to carry out the project, the availability of public or private funding, political games, the action of pressure groups, the social acceptability of the project, and the outcome of the consultation are all unknown and rarely make it possible to know the period of commissioning or marketing before the DUP. Exceptions can confirm the rule. For example, the North HSL was completed on time, despite opposition from the inhabitants of the Amiens region, as the connection with the Channel Tunnel toward London was a political imperative. The new residential and office districts are developing quite quickly around several future stations of the Grand Paris Express metro. Their marketing accompanies the construction of new lines and stations for the Paris region’s automatic metro system and their timeline are linked.

The life of a project can easily reach 20 or 30 years between the political idea of carrying it out and the DUP. Commissioning may also take several years. As a result, the socioeconomic planning context that defines the characteristics of the project (nature, functions, location, size, renovation, or new construction) is likely to change between preliminary studies, the preliminary draft, and commissioning/marketing. It is difficult for the planner to accurately predict lifestyles, demographic trends, GDP growth, and other variables that may influence the use of equipment, the marketing of offices or housing, or the traffic flows of a transport infrastructure over a period of 10, 15, and 20 years or more. The planning literature highlights this difficulty in predicting the future. Bertolini et al. (2008) show that planning remains a discipline in transition for the time being. The death knell of predict and provide planning, which consists in making long-term demographic, social, and economic forecasts and planning projects based on this virtual demand, has been reached. The question is therefore: how can we best plan projects as close as possible to the reality of tomorrow in relation to random, long-term variable demand, ensuring, particularly in a context of rapid change in the economic situation, correct profitability for the project operator, a relevant choice of route, and territorial coverage in the case of a transport project, a choice of housing and equipment adapted to socio-demographic needs and a choice of offices and premises adapted to the needs of companies?

1.7. Multi-scalar and multi-objective planning Analysis of the decision-making processes of many development projects shows that, depending on their scale, projects can be the subject of interventions by actors from different institutional levels (State, region, departments, inter-municipalities, municipalities). Each level of the actor may have different objectives, which do not always converge. For example, for transport projects on a national scale, the State has national and international networking objectives, time-saving, or modal transfer objectives. Regional councils and presidents of inter-municipalities will be sensitive to this, while often insisting during the consultation process that the project best serves their territory, avoids a particular agricultural or natural sector, allows the service of a particular economic zone, and so on. Elected officials can also relay the position of the public, associations or professional branches – particularly agricultural – which generally defend local objectives. The participation of the regions and local authorities in the financing of transport projects and ancillary equipment (stations, urban regeneration) alongside the State, SNCF Réseau, or private partners, as has been practiced since the first experience of the East HSL, allows the legitimate expression of the interests and objectives of each institutional level. For example, the City of Paris agreed to co-finance Météor at the end of the 1980s on condition that the route be modified to the south of the capital and serve the new housing and office district of Bercy, then quite isolated. SNCF Réseau points out that the exit from the financing plan of one of the local authorities that did not agree with the objectives of a high-speed line project is a major hazard, which is

also the subject of a calculation of a provision for risk in the project’s risk analysis33. For example, the Poitou-Charentes region refused to participate in the financing of the South Europe Atlantic HSL project, and several local authorities took time to agree to finance their share of €1.5 billion, equivalent to that of the State. The missing part of the financing was provided by large local authorities in the Midi-Pyrénées region, which was not involved in the first Tours–Bordeaux section covered by the decision. For local projects (JDZ, station district, etc.), there are often fewer actors. We can find the President of the inter-municipality, the elected representatives of the opposition (if it is the case), the associations, the economic environment, and sometimes according to the project the department and the region34. Differences in the position may be observed, in particular with regard to the functions of the project, its importance, or its objectives. The case of the Paris Rive Gauche JDZ is eloquent in this regard. The right-wing elected representatives positioned themselves in the early 1990s for a project consisting mainly of offices and focusing on road transport. The new mandate of the left wing oriented the project toward a balance between offices and housing and a significant proportion of social housing from 2003, in conjunction with local associations, which had obtained a partial revision of the project in 1996 to this end. In general, whatever the scale of the project, planning must integrate over the long-term objectives from actors at different levels. These objectives can change over time depending on the actors, coalitions involved, and opportunities.

1.8. Participatory decision-making process and unpredictability The need to legitimize public action is also becoming increasingly important in the political planning decision-making process, generally for all decisions, but also in particular for development projects, which can be very expensive and subject to cost overruns (Flyvbjerg et al. 2008). The question of the legitimacy of public decision-making and its modalities in this field is contemporary with the first disputes about transport infrastructure projects in France (highway projects such as the A400 Annemasse–Thonon-les-Bains and the A51 Grenoble– Sisteron highways, Mediterranean HSL), Europe, North America, Asia, Australia, or some major urban projects (such as the Paris Rive Gauche JDZ which covers 130 ha). The public’s demand to participate in public decisions and the development of environmental concerns have led to a change in the texts on decision-making mechanisms since the 1980s in the direction of greater transparency of debates between the project owner and the public by organizing a debate focused on the interest and opportunity of the proposed project, unlike the previous approach which, according to critics, led to choices “imposed solely on the basis of technical efficiency” (Fourniau 1994). The openness of the decision-making process allows actors and the public to question, during

the planning and programming process, the vulnerability of their interests and objectives in relation to the project in the event of: – environmental and human impacts [in the context of preliminary studies, preliminary draft (APS) and detailed preliminary project studies (APD)]; – financial risks (in the context of a concession contract since the user will finance the project, in the context of a partnership contract since the risks will be shared between the public authorities and the private operator or full public financing assumed by the community and the taxpayer); – financial market risks, the variation of which may contribute to an increase in the cost of the project. This additional cost may be covered by taxes or commercial revenues; – institutional risks, which can lead to regulatory changes; – or difficult social acceptability that could delay the project and lead to cost overruns. Stakeholders and the public have the opportunity to adopt a position in line with their interests and objectives, which may hinder the process of planning, design, and implementation of the project. A local authority may withdraw from the financing plan, an association may appeal to the administrative court which results in a suspension of the work. These positions, and their consequences for the decision-making process and the progress of the project, vary depending on whether they occur at the time of the APS studies (preliminary draft) and the public inquiry (when the characteristics and cost of the project stabilize) or during the work. These positions and their consequences are not always predictable for public and private project owners, despite the territorial context studies and the continuous consultation they can carry out from the beginning of the project to operation. These uncertainties that cannot always be identified as risks may or may not be included in the risk provisions of the risk analysis. The positions taken (evolving and sometimes unexpected) are also part of a context of actors’ “mutual learning” (public, private and citizens) linked to uncertainty during the planning and production of projects (Novarina 1998, p. 177). These lessons can result in changes in vision and mentality within stakeholder groups. New knowledge or the emergence of new interests argued by their bearers can change the points of view on a development project, which can have an influence on its nature, function, objectives, or even the urban form (as was the case for the Paris Rive Gauche JDZ initially planned with a slab and high-rise buildings and which is now occupied by buildings with a few floors and green spaces).

1.9. The social, environmental, and economic performance of the companies that carry out the projects

The notion of corporate social responsibility is developing under the influence of sustainable development. It implies that the companies that adhere to it assume the potential social, financial, or environmental consequences of the risks taken voluntarily or involuntarily in the course of their activity. This leads them to compensate the public, organizations, or sites affected in the event of damage and, increasingly, to develop risk prevention. The notion of responsibility is shifting toward prevention (Le Ray 2010). This is all the more so since public authorities can impose performance obligations on companies in terms of controlling work-related, technical, environmental, and other risks, which can lead to criminal convictions in the event of non-compliance.

1.10. Conclusion The uncertain environment in which projects are planned and produced makes a starting point uncertain. Depending on the context and the game of the actors, it may or may not turn into a risk, or an opportunity, or disappear. Context is very important for the successful planning, design, and implementation of a project (OMEGA 2012). But the same context can be characterized by different uncertainties and risks depending on the actors in place and the positions they hold and defend. The following chapter defines these types of risks and opportunities. 1 Source: Dubois E., Ouvrard J.-F., Guannel B., Jégou N., La zone euro sous tension, note de conjoncture, INSEE, Paris, available at: https://www.insee.fr/fr/statistiques/1407977, June 2012. 2 Source: Passeron V., Boucher D, Dortet-Bernadet V., Meinzel P., La croissance à l’épreuve des incertitudes, note de conjoncture, INSEE, Paris, available at: https://www.insee.fr/fr/statistiques/2531688?sommaire=2531694, December 2016. 3 Source: Pouget J., Roucher D., Berthier B., Quévat D., La France garde la cadence, note de conjoncture, INSEE, Paris, available at: https://www.insee.fr/fr/statistiques/3292415, December 2017. 4 SNIT: Schéma national des infrastructures de transport (French master plan for transport infrastructure). 5 AFIT: Agence de financement des infrastructures de transport (French agency for the financing of transport infrastructures). 6 NFA: net floor area. 7 APS: avant-projet sommaire (preliminary draft); APD: avant-projet détaillé (a detailed preliminary project). 8 SCOT: Schéma de cohérence territoriale (French territorial coherence master plan: it is a local planning document which gathers environmental, social, economic, urban, etc.,

issues of an urban area); PLU: plan local d’urbanisme (French local urban plan: it is a document which plans the land use of an urban area). 9 Source: SPLA Public Territories interview, Rennes, June 2015. 10 SEM: société d’économie mixte (French mixed economy company). 11 Source: Vinci company interview, June 2014. 12 Source: Cour des Comptes, Annual Public Report 2017, 2017. 13 Source: Gradt J.-M., “Péage de transit, le gouvernement devra renégocier avec Ecomouv”, Les Echos, June 23, 2014. 14 Source: SNCF Réseau interview, February 12, 2014. 15 It is a public–private partnership used, in particular, in Great Britain, which allows a private company to create and build an infrastructure and carry out a mission in the public interest. PFI contracts can be of various kinds. PFI: private finance initiative. 16 Source: SNCF Réseau interview, January 9, 2014. 17 Source: WHO, available at: https://www.who.int/ionizing_radiation/chernobyl/backgrounder/en/. 18 DUP: déclaration d’utilité publique (French declaration of public utility). 19 Source: Ministère de L’Equipement, Framework Instruction of March 25, 2004, on the harmonization of evaluation methods for major transport infrastructure projects. 20 Source: SNCF Réseau interview, December 13, 2013. 21 Source: ibid. 22 DREAL: Direction régionale de l’environnement, de l’aménagement et du logement (French regional directorate for the environment, planning and housing). 23 Source: Le Moniteur, February 14, 2014. 24 Source: SNCF Réseau interview, December 13, 2013. 25 Source: ibid. 26 Source: SNCF Réseau interview, February 5, 2014. 27 Source: Sepanso interview (Fédération régionale des associations de protection de la nature en région Aquitaine), from January 24, 2014. 28 This internal SNCF Réseau document is improved thanks to feedback received from the various projects carried out. It indicates the technical characteristics of the railway project:

objectives (e.g. speed), signaling systems, operating performance, flow, and so on. 29 Source: Eiffage interview, November 19, 2013. 30 Source: Gylden A., “Grands chantiers en Allemagne, Kolossale Katastrophe!”, L’Express, online, August 8, 2014. 31 RATP (Régie autonome des transports parisiens) is a public company which operates the public transport network of the Paris and Île-de-France region. SNCF (Société nationale des chemins de fer français) is a national public company which operates the regional and national French railway network. 32 Source: Mobilité 21, Pour un schéma national de mobilité durable, Report to the French Minister for Transport, Sea and Fisheries, June 27, 2013. 33 Source: SNCF Réseau interview, January 9, 2014. 34 18 regions and 101 departments exist in France. A region accounts for several departments.

2 How Can We Define Uncertainties and Risks? Risk from a Theoretical Point of View 2.1. Risks, uncertainties, hazards: disciplinary definitions The concepts of risk and uncertainty have different meanings. Geography, project management, and economics, the disciplines that commonly use them, make it possible to clarify the meaning (and the meaning of related concepts) from both a conceptual and an operational point of view.

2.1.1. The notions of risk, hazard, and vulnerability in geography Geography is currently a discipline that is particularly concerned with the prevention and management of natural and technological risks, particularly after certain disasters that have occurred on various scales and with varying impacts (the tsunami in the Indian Ocean in 2004, Hurricane Katrina in New Orleans in 2005, and floods in the Landes and PyrénéesAtlantiques in 2014). Risk is precisely defined in geography as a social object, which is the result of a negative perception of a hazard by society (Veyret and Reghezza 2005). It belongs to the realm of probability. A hazard is a physical process. For Yvette Veyret and Magali Reghezza, “it is only through perception and experience that hazard becomes risk”. There may be some subjectivity in what can be defined as a risk. This subjectivity can be important in the planning and production of development and infrastructure operations. The potential consequences of a project for the human environment can be perceived as a risk by the public, who may fear that their living conditions or environment may be affected. In the 2005 article, Yvette Veyret and Magali Reghezza show the paradigm shifts in risk geography. The latter studies the physical processes active during the first half of the 20th century and then, from the 1970s onward, the relationships between natural and social facts such as the impact of human actions on the natural environment or climatic hazards. The French conceptual break is clear: the hazard is considered according to its possible impact on society, therefore, as a risk. The American conception of risk is different. Noting an increase in natural disasters, the head of the Chicago Geographic School, G.F. White, hypothesizes that the causes of these disasters are to be found not only in their physical processes but also in the difficulty or even inability of societies to cope with them. This approach introduces the concept of vulnerability, which became central to the approaches to North American risk geography in the 1970s. The notion of vulnerability can be defined in two different ways. First, it measures the

potential damage caused to an object exposed to a physical hazard or process. The measure is quantitative (number of deaths, buildings destroyed, etc.). Second, it defines the conditions that result in damage to an object and the ability of the object to respond and adapt. This second approach is that of North American geography, which can be found in a literature devoted to urban resilience, for example, Maret and Cadoul (2008). The notion of biophysical vulnerability complements the first two. It is determined by the nature of the hazard to which the object is exposed, by the level of occurrence of this hazard, the importance of the exposure, and the object’s sensitivity to the impacts of the hazard. This concept does not make it possible to define the vulnerability of an object when the intensity and impact area of the hazard is unknown. A measure of the occurrence of the hazard, its potential impact, and its potential severity is, therefore, necessary. The authors note vulnerability factors such as the level of preparedness of a society to face a hazard; the reaction of society in the event of the occurrence of this hazard; the absence of a risk culture or a risk management policy; and the integration of large metropolitan areas into global networks that can “spread” a risk. Vulnerability may also apply, from another point of view, to the project’s human and natural environment, which can be damaged. This is often the position of environmental protection associations in particular. The issue of the vulnerability of species and natural areas has led the public authorities to set up procedures (more detailed impact assessment, compensatory measures imposed on the project owner, etc.) to limit the project’s impact as much as possible and make the decision-making process more fluid. The notion of vulnerability can also be applied to the planning and production of development and infrastructure projects. The causes of damage1 (such as delay or extra cost) to the conduct of a project or its objectives can be determined by tracing the decision-making process. It is possible to define the reaction capacity of a project exposed to a hazard. For example, work on the A65 Langon–Pau highway project was delayed by 6 months after two unfavorable opinions from the CNPN in 20082. The State paid €90 million to the concession company Aliénor and extended the concession by 5 years to compensate for the financial loss resulting from the interruption of the construction site, the delay in commissioning, and the collection of toll revenues. The CNPN is an advisory committee mandated to give its opinion on the means implemented to preserve and maintain natural areas and the diversity of flora and fauna and natural habitats. It initially considered that the damage caused to protected species was too significant in the Landes to give a favorable opinion. The concession company Aliénor had to manage 1,372 ha of natural areas to compensate for the residual impacts of the infrastructure and allow the restoration of natural habitats.

2.1.2. The notions of risk, uncertainty, and hazard in project management The literature on project management is full of work on methods for optimizing project

management in order to value the classic three-pronged approach of a project: the objectives of time, cost, and quality. This requirement, which is already present in private contracting companies, development SEMs, and SNCF but with particular constraints3, has been reinforced since the call for tenders for the design, construction, and even operation of these projects under concession or partnership contract and since the adoption of Act No. 2008-735 of July 28, 2008, on partnership contracts. In project management, risk is defined as a dangerous event whose causes and consequences are known, and whose frequency, severity, and occurrence can be determined for a potential target (Le Ray 2010). By target, we mean here the development project, whatever its scale, such as an urban renewal operation or a transport project, or the human, natural, heritage, or social environment of the project. The consequences of risk can be positive and result in new opportunities. For example, an episode of protest may lead to a more consensual solution for the project and make it less likely to generate a risk of delay during construction. The social, economic, and environmental consequences can also be negative. This is referred to as damage or impact to the project. Protective and preventive measures can be taken to limit or avoid the scope of the risk. The probability of risk occurrence depends on the frequency of exposure of the object to this risk. Severity measurement is used to assess the consequences of risk. To measure a risk, its frequency, and severity, it is first necessary to identify the risk. This boundary between an area of certainty, where it is possible to determine the possible causes and consequences of an event, and an area of uncertainty, where this is impossible, defines risk, on the one hand, and uncertainty, on the other. In a certainty zone, being able to determine the causes and consequences of an event means that the event is known, has already occurred, and that its origin and impacts have already been identified and accurately analyzed. Knowledge is of great importance here. However, it does not mean absolute certainty. It makes it possible to better determine the context and conditions under which an event occurs, and to imagine with a margin of uncertainty the possible consequences. In the areas of uncertainty, the lack of knowledge of identical events does not make it possible to know the causes that generate an event or the consequences that create impacts or opportunities for the object. Causes and consequences may be in the known domain, if other rare events of the same kind have already occurred, or in the unknown domain, if other rare events have not occurred. In the field of project planning and production, it is not always easy for the project owner to know, for example, the possible reactions of the public and all local elected officials to a project, which can result in an agreement, a slight dispute, or even a very strong mobilization against the project during the public debate and during the consultation. It may also have difficulty in determining the consequences that the public’s positions and actions may have on the project (minor technical modifications, difficult expropriations that block the work, or,

in some cases, major reconfiguration or even termination of the project). Unlike risk, uncertainty can, therefore, be defined as a possible event, which cannot necessarily be accurately characterized and whose causes and consequences are unknown. This event is therefore not measurable. We can’t estimate either the frequency or the severity. In project management, hazard is defined as “an event that disrupts, positively or negatively, the progress of the action or project, but whose occurrence has been previously considered. The resulting situation was therefore expected” (Le Ray 2010, p. 25). The knowledge of a hazard also depends on the knowledge of the context and conditions likely to produce an event. The possibility of measurement makes it possible to distinguish the hazard from the risk. Since project management must make it possible to achieve cost, time, and quality objectives, and henceforth certain sustainable development objectives, the project owner is more interested in the identification, analysis, and treatment of risk, which can be known and quantified, than in the identification, analysis, and treatment of hazard, which is certainly known, but not quantified. Risk management distinguishes different levels of risk, depending on the degree of knowledge about them (Le Ray 2010). Risk is recognized when the hazard has been accurately identified and the frequency and severity can be accurately measured. As the causes are known, the risk can be prevented. Knowledge of the gravity of the risk makes it possible to develop protective measures. If the severity or frequency cannot be reliably measured, the risk is considered potential. There is no certainty about the threat nor about the absence of a threat. Precautionary measures can limit the impact of this type of risk. The presumed risks belong more to the sphere of uncertainty. Neither severity nor frequency can be measured, but knowledge of similar situations shows that such risks exist. Monitoring can help to limit these uncertainties. Indicator monitoring studies show improvement or deterioration in a situation that could lead to a proven or potential risk. The last category is that of unknown risks, or the unexpected. This attitude consists in risk management by accepting that we have not considered everything. This notion “qualifies a disruptive event whose occurrence has not been previously considered. The resulting situation is therefore unexpected and may include new positive and/or negative elements” (Le Ray 2010, p. 25). The hazard not previously identified due to lack of sufficient knowledge can be described as unforeseen.

2.1.3. The notions of risk and uncertainty in economics Approaches to risk and uncertainty are reflected in the report of the Centre d’analyse stratégique on Le calcul du risque dans les investissements publics (The Calculation of Risk in Public Investments) (2011), which covers all the major sectors of public action in transport, health, agriculture, energy, and sustainable development. This center depends on the French Prime Minister’s services and specifies guidelines for decision-making support methods and the choice of major projects before they are entrusted to a public or private

project owner. Classically, Keynes (1921) and Knight (1921) distinguish between risks and probabilities as follows. If the occurrence of a hazard is known from past data, it can be called a risk. If it is not possible to know the probability of an event, we can talk about uncertainty. A risk can be “standard” because it is known and classic in a given sector. It can also be “emerging”, such as climate change. In this case, past data are often missing making it difficult to identify an occurrence or the appropriate severity levels based on specific risk production conditions, and so on. The report also distinguishes between radical uncertainty and ordinary uncertainty. The latter is, in this report, “assimilated to the concept of risk”. Radical uncertainty refers to an unpredictable, even inconceivable, and therefore unlikely event. The method then consists in considering the feasibility of a situation different from the current situation and developing the approach and conditions necessary to achieve this situation. This approach often takes into account extreme or rare events. The economy complements these notions with those of risk aversion and ambiguity aversion. Absolute risk aversion varies with wealth level, and relative risk aversion is defined as “a measure of behavior, adjusted for the wealth effect” (p. 60). Individuals seek to “maximize the expectation of the usefulness of their actions,” and take into account other elements in their decision, related to their subjectivity and level of knowledge. Individuals tend to “overestimate low probabilities […] and the probabilities of adverse events”. They prefer to know the probabilities of a situation, even it means being “in a risky situation” rather than not knowing them and being “in a situation of uncertainty”. This aversion to uncertainty reflects an aversion to ambiguity in the decision and choices of individuals, close to the precautionary principle. The behaviors that lead to decisions will seek to “minimize maximum regret [and] maximize the lowest utility expectation among all possible distributions…” (p. 61). These approaches (Ellsberg 1961) allow the complexity of decisionmaking processes to be integrated into risk analysis.

2.1.4. How does the public or private project owner use the concepts of risk and uncertainty? Overall, the development project managers of private groups gather all risks and uncertainties under the term “risk” when they consider that events may have an impact of a certain degree of seriousness on the project or contract that is sufficiently high to involve processing measures or the setting of a provision for risk in the business plan or project monitoring. In their practices, project managers distance themselves pragmatically from the precise definitions of the notions of risk, uncertainty, and so on used in geography, project management, and finance. In order not to focus project management on all the risks that may occur, and on all the uncertainties that may affect compliance with the clauses of the contract, the Eiffage group, holder of concessions and partnership contracts for development projects,

refers to a “risk pool”4. All events considered by the project management which are likely to affect the smooth running of the project in relation to the cost, deadline, and quality objectives are grouped together in a general risk set. An event of this type may require the consideration of a possible delay, additional processing action, or even a provision for risk in the project monitoring by the project owner. In particular, SNCF Réseau applies a probabilistic method to current high-speed line projects, including recent projects such as the South Europe Atlantic HSL and Brittany–Pays de la Loire HSL, which it defines as uncertainties, whereas academic definitions distinguish risk and uncertainty.

2.2. Territorialized risks The notion of “territorialized risk” appeared in the literature during the 1990s (Galland 1998). This is a risk that reveals conflicting interests (elected officials, residents, associations, industrialists, etc.), “particularly around urban planning issues, as is the case with the technological risks generated by a particular dangerous industrial site (e.g. chemical plant)” (November 2010). In this conception, the territory has a passive role. Different research trends can be distinguished. Research on planning related to territorialized risks gave rise to much work during the 1980s and 1990s on technological and natural risks. Various fields of research related to the territory have developed, such as the limitation of urbanization near high-risk sites (Duchêne 2001; Fontanille 1996; Martinais 1996, 2001), its criticism (Blésius 2014), or the relationship between urban density and risk (Blancher 1995). In the 1990s and 2000s, much work was carried out on the physical, social, and spatial vulnerability envisaged (Gleyze and Reghezza 2007; Reghezza 2009; Rufat 2007), and, in particular, on the vulnerability in urban areas (e.g. D’Ercole 1994; Reghezza 2006). Research on risk as a territorialized object was developed in the 2000s under the influence of work on conflicts and consultation. Research focuses on negotiating not only risks (Gralepois 2012; Keynes 1948; Osadtchy 2014) and acceptance thresholds (Bernier 2007) but also risk management practices, standards, and offsets, particularly in the case of technological risk and natural risk, considered separately (Osadtchy 2014).

2.3. Risk chains in time and space However, this notion of territorialized risk seems more complex than before. It is at the crossroads of five classic approaches (November 2010, p. 280): “a normative approach (limits set by standards), a security approach (studies the institutional response to security), a probabilistic approach (based on the laws of occurrence for the identification of periodicizations), an insurance approach (same approach, but quantifying them in relation to the market), or by representations”. But these approaches do not take into account the fact that risk can occur at various territorial scales and generate other risks that can occur at other scales or at variable time horizons

(short, medium, and long terms). We can rather speak of the “territoriality of risk”. The 2000s, therefore, marked a shift in the concept with the emergence of a multi-risk concept that complemented work focusing on only one type of risk (natural, technological, etc.; see November 2010). But as V. November states, this field is under construction and needs to be developed. This “multi-risk” approach is valid for development projects. In the case of planning and production of these projects, “risk chains” can be identified in time and space. For example, a risk to a protected species caused by a project may be reported by a nature conservation association. If this potential risk is not (sufficiently) taken into account by the project owner, it can produce a social risk (materialized by a more or less strong opposition to the project in the consultation). This opposition may be echoed by expropriable residents who will join the movement. Social risk can extend to a larger territory, block the project, and generate a significant additional cost (i.e. a financial risk) in the medium or long term (Zembri-Mary 2014).

2.4. “Expert” risk and perceived risk In the 1970s, risk perceived by the public was considered by researchers to be irrational when it was different from that assessed by experts. The latter is based on measurements and statistics (work by Rowe (1977) cited by Kermisch (2010)). In this case, the risk measured by experts is considered real, while the risk estimated by the public is considered perceived. The work of the Department of Psychology at the University of Oregon criticized these conclusions in the 1980s. Indeed, researchers have highlighted the fact that risk estimates by lay people are different from those of experts because the definition of risk by the lay person is broader. According to Slovic (1981, cited by Kermisch (2010)), experts and lay people have different interpretations of the notion of risk. The expert evaluates the risk according to mortality, and the layman takes into account more qualitative criteria (the terrifying aspect of the event, personal exposure, the severity of the consequences, etc.). Gardner and Gould reach the same conclusions (1989, cited by Kermisch (2010)). In the case of development projects, the expert ultimately characterizes the risk, as social, technical, or regulatory, with criteria such as delay time, additional costs, or non-compliance with quality objectives. The layman is led to examine the globality of risks if the project must be carried out near their home, such as noise or landscape pollution, a decrease in the price of their home, a change in their living environment or habits, environmental damage, and so on. The research points out that the assessment of a risk may vary according to different factors, thus challenging the preconceived notion that expert risk would always prevail over the risk assessed by the layman. Indeed, according to Le Breton (2012), estimating a risk can depend on “precise circumstances (knowledge or not of the field, urgency or reflection period, presence or not of others, identity issues, etc.)” and the “‘objective’ measurement of risk is a political and social

fiction, which is not the same according to the evaluation criteria, is based on a permanent debate between the different social actors, and implies economic and social consequences that are sometimes considerable”. For Kermisch (2010), the expert’s measurement of risk also depends on the expert’s judgment, which may vary according to the circumstances. In addition, the expert can also determine a risk through perception (Fischhoff 1983, pp. 237– 238, cited by Kermisch (2010)). The perception of risk can also be linked to its acceptability. According to Fischhoff et al. (1978), who have worked on nuclear risk, the perception and the acceptability of risk are based on the perceived benefits that the risky activity generates for society, the average number of victims per year, and the number of victims in the event of a disaster. The perception of risk, therefore, depends on the acceptability to the public. On the other hand, the risk suffered, which the individual cannot control or evaluate, seems vaguer than a risk they decide to take. The risk suffered is therefore often refused. Le Breton (2012) stresses that “individuals are not isolated rationalities capable of being convinced by the arguments of engineers or scientists’ authority”. The layperson’s response to a risk may vary with the individual, according to criteria such as their social affiliation, culture, age, gender, values, and curiosity (Le Breton 2012). The relationship to risk is different from one individual to another. As a result, individuals can define what they consider to be a risk. They may not be sensitive to certain risks, or, on the contrary, react strongly to others (Setbon 2014). One person living in the vicinity of a project does not react to any nuisances they may experience. Another may be outraged by the latter or by the implementation of the project and express their disagreement during the consultation, or even refuse to be expropriated, which has the consequence of blocking the implementation of part of the project. Therefore, the more a risk becomes acceptable by one part of the public, the more likely it is to be denounced by another part of the public or associations. This could provide them some power in a project negotiation process.

2.5. Risk and opportunity Risk management can reduce a risk, eliminate it, or turn it into an opportunity. Overall, this approach is considered to create value. For practitioners, risk is “part of the job”. The challenge is not only to remove the risk but to try to transform the negative initial risk into a zero value (the risk is limited or eliminated) or a positive value (the risk becomes an opportunity) (Le Ray 2010). Vigorous opposition from local residents can block the completion of a project and generate significant delays or high additional costs. The project owner’s consideration of the demands of local resident’s upstream of the project can reassure them about the possible impact of the project on their living environment and their land/accommodation and calm the start of a dispute. The potential risk of opposition may then be avoided. In the case of national transport projects, the consideration by the project owner of the requests of local authorities

(who often co-finance the project) on the route, for example, can create an opportunity for political support for the project. Revising the project route can reduce the volumes of materials planned at one location and allow them to be assigned to another point on the route, which will also allow it to be modified to satisfy the residents at a constant cost.

2.6. Uncertainties, risks, and opportunities external to the project In project management, the notion of risk and risk management can be used for events whose causes and consequences are known, and for events whose frequency and severity can be measured. The notion of uncertainty and the process of knowledge can be used in other cases, for example, situations of consultation whose outcome cannot be predicted in advance by the project owner. As projects are developed in very different institutional, economic, technical, and organizational contexts, it is sometimes difficult to have an accurate knowledge of the causes and consequences of possible hazards, especially since they may vary during the long process of project gestation. It may also be difficult to establish a precise probability of the frequency and severity of a risk in a project-specific, long-term evolutionary context. The expert opinion can be used in this case. During consultation and context analyses, project owners identify possible hazards: current dispute, problem of destruction of protected species, route to be modified because of the proximity of agricultural land or the request of an elected representative wishing to avoid a particular sector, and evolution of a regulation. Each hazard is subject to an internal evaluation by an expert to assess its possible impact on the project, on the objectives of the project, and its severity. Construction companies take into account in their financial risk analyses hazards for which there is tangible evidence of danger to the project5, its progress, or the achievement of its objectives. The expert assessment can make it possible, with in certain limitations, to qualify a hazard as a risk. This experience allows the expert to accumulate knowledge to identify contexts that may generate risks and impact the project on which the individual is working. In this case, the analyzed event can be qualified as a potential risk. We cannot necessarily determine its frequency. But the expert’s opinion makes it possible to determine the causes and possible impacts. This risk analysis is carried out at Eiffage at several hierarchical levels. Finally, the project management gathers the risk analyses of each geographical sector of the project and each sector of activity (earthworks, concrete structures, etc.) and chooses to maintain or remove certain risks from the “risk pool”6.

2.6.1. Characteristics of events that may impact a project or its social, natural, or economic environment (according to experts)

The observations indicated in Table 2.1 on the project owner’s possibilities or difficulties in establishing the frequency, probability of occurrence, severity, or level of impact of an event do not claim to establish generalities. They summarize the evaluation opportunities and challenges identified on some projects that depend on the specific context of each project. Table 2.1. Characteristics of social, political, environmental, regulatory, and financial events that may affect a project. Source: interviews conducted between 2013 and 2018 with construction companies (Eiffage, Vinci, and SNCF Réseau) Causes

Frequency

Consequences

Can be known Difficult to assess Variables (ranging thanks to for the project from simple feedback except in cases of controversies to hold systematic ups in the project opposition through recourse) Political event Can be known Difficult to assess Variables (ranging thanks to from simply feedback controversies to project hold ups) Environmental Known if Can be known Known if impact event impact studies studies and species and inventories inventories are of species are detailed detailed Regulatory Can be known Difficult to assess Difficult to foresee event thanks to legal before publication of monitoring and a text feedback Financial Known in Can be assessed Known thanks to event general feedback Social event

Possible quantification methods according to the severity level Delays, excess costs

Delays, excess costs

Species, habitats and affected natural areas, level of pollution, etc. Delays, excess costs

Excess costs

Table 2.1 has been established on the basis of risk management practices by public and private project owners for urban projects (station districts, stadiums, cultural facilities, JDZ, HSL, and highways) carried out over the last 15 years. These practices have been detailed during the interviews. The transformation of uncertainties into calculable risks can block the lack of knowledge that can characterize uncertainties, especially if they are new in the decision-making process of a project. Experience can help to anticipate certain events, but not all of them can be predicted. They then fall into the category of unidentified risks.

2.6.2. Political risk and opportunity Political uncertainty is observed in a decision-making process if the project has little support from elected officials, or if they oppose it. This hazard can become a risk if its causes and consequences can be determined and if its severity and frequency are defined. The causes are variable, such as opposition linked to political affiliation, failure by the project owner to take into account the specific requests of elected officials, refusal by the latter to finance the project, or support by the latter to local residents opposed to the project. The consequences can also be variable. Either the proposed project is not modified by the project owner, or it is modified at the margin or strongly depending on the position of the elected officials. Delays and additional costs may also occur as a result of these changes. Once the consequences are more or less known, the severity can be quantified by the cost of modifying a project, the number of days of delay, additional cost, the cancellation of the project, and so on. Frequency is difficult to assess because of the small number of projects for which there are data and context varieties that can generate different effects between several projects. The planning and production of projects may encounter political opportunities. In the case of large stadiums or the Rennes station district, local elected officials are often supporters of the project, because they may be at the origin of it or the project represents an electoral issue. These elected officials can also define the project precisely before the development concession is signed. This helps them in controlling the final project (nature, NFA, land use coefficient (COS), composition, etc.) without transferring the decision to private actors in urban production. Elected officials can also speed up the process if the project is threatened. The President of the Regional Council of Brittany personally intervened with President Jacques Chirac in 2003 after the audit of the Conseil général des Ponts et Chaussées ranked the Bretagne–Pays de la Loire (Brittany–Pays de la Loire) project last on the list of HSL projects to be selected (Mourra et al. 2003). As in all projects, there is opposition from other elected officials, but often marginal.

2.6.3. Risk and social opportunities Social risk can exist in a planning process if the public (residents, local residents, associations, farmers, etc.) oppose the project or demand significant modifications or compensation. Individual disagreements may crystallize in the form of a more general opposition – Paris Rive Gauche JDZ, Stade de Lyon, A83 Nantes–Niort highway, Mediterranean HSL. Nature or site protection associations can also express their unfavorable position to the project in the media, by open letter to elected officials, sit-ins, non-violent demonstrations, site blockades, ZADS or litigation7. The high-profile action of the associations against the Notre-Dame-des-Landes airport project is an example. The causes can be variable such as a fear of the nuisances from a NIMBY project, the refusal of a highway toll, an environmentalist position, a refusal of expropriations, a violation of

farmers’ working conditions and land, and so on. The consequences can be the same as for a political risk, i.e. a controversy, a dispute or a movement of opposition to the project and a more or less significant modification of the project to integrate the demands of the inhabitants. These changes may result in additional costs or delays. The seriousness of the consequences of this event can also be estimated according to the additional cost caused by the modifications of the project or the delay in the planning. Further studies are needed to determine these consequences. Occurrence is difficult to assess for the same reasons as political risk. Callon et al. (2011) point out that consultation forums (public debate, public inquiry, etc.) debate social and technical uncertainties, stage them, sometimes mediatize them, and place them at the center of the debate. A consultation on the subject of the fear or dissatisfaction of the inhabitants, between them and the project owner, is an important step. The inhabitants can indeed raise environmental, economic or social territory issues at risk. If they feel they are not being heard, controversy can turn into a social risk. The negotiation of the risks to be taken into account by the project owner, additional studies to be carried out, requests from the inhabitants, compensation and modifications of the project are part of the decisionmaking process. A continuous transmission of information between the public project owner and the private project owner when signing the concession or partnership contract can help to limit the social risk. Social risk can also be an opportunity. The risk highlighted by the inhabitants and associations can give them significant weight in the consultation, decision-making, and formalization of the project. The project owner or the State may take these risks into account in assessments in order to improve acceptance of the project, modify it accordingly, and better adapt it to its environment as part of a co-construction of the project, which does not exclude power relations. The environmental assessment makes it possible, with a very detailed impact study prepared in collaboration with local associations, to limit the uncertainty of the project’s passage before the CNPN. A well-assembled file and well-calculated compensations make it easier to get past this point. A member of the project management of the Brittany–Pays de la Loire HSL indicates that the HSL file received a favorable opinion at the first appearance before this committee, thanks to the experience acquired by the group with the A65 Langon–Pau8 highway. This highway project, which obtained a favorable opinion from the committee after three applications had been submitted, prompted the Eiffage group to consult more closely with nature protection associations for the Brittany–Pays de la Loire HSL project and to take into account the project’s threats to natural species reported by these associations in the impact study. The project did not encounter any major opposition, obtained a favorable opinion from the committee from the first presentation, and was carried out on time and at no extra cost (unlike the A65 Langon–Pau highway).

The various controversies and movements of opposition to urban, industrial or transport projects have pushed the State to change generic project evaluation practices. For example, the impact study and environmental assessment of a project must now integrate the risks identified by residents or associations, even if they are not part of standardized methodologies. The difficulty lies in their evaluation.

2.6.4. The risk and opportunity related to the choices and behaviors of residents and the economic environment Inhabitants have a more or less wide range of choices in terms of residential mobility, residential location, preferential use of a particular mode of transport, use of a particular public facility, sports center, mall, and so on. Inhabitants’ residential location choices are more or less predictable in a context of competition between housing operations and between metropolitan areas to attract additional inhabitants. The determination of the probability of using a given mall or sports site in a competitive context is also constrained by a number of more or less well-known factors (household needs, tastes, etc.). The causes of this risk are linked to the difficult predictability of the choices and behaviors of residents and companies. The consequences may be a lower than expected number of people using equipment, a lower rate of marketing of housing or offices, or lower than expected traffic. Another consequence of this type of risk is the commercial risk, defined in the following. The seriousness of this risk can be measured by the difference between the number of visits, the number of sales, or the traffic forecasted and carried out at a date x or by the loss of commercial revenues. The frequency of this type of risk can be determined by expert opinion. The opportunities related to the choices and behaviors of residents and companies can be defined as the opposite situation. The random nature of these choices and behaviors can result in the interest of a large proportion of households and businesses in certain development operations, equipment or transport infrastructure because of the amenities offered, the purchase or use price, the location, and so on. Opportunities may also arise from the success of certain operations that shift part of the demand to less demanded operations.

2.6.5. Risk and regulatory opportunity Regulatory risk (sometimes referred to as institutional risk) refers to possible regulatory changes of all kinds (financial, technical, safety, etc.). The causes of these changes are known. This may involve a new political positioning of the State, the application of the principle of subsidiarity, increased security requirements following an event, and so on. The consequences for the project owner may include additional standards to be put in place, additional studies to be carried out, technical modifications to be made to an ongoing project,

and so on. Severity can also be assessed with the additional cost and potential delay associated with these new standards and studies. The frequency may be difficult to assess, as the conditions for these changes are not always known. Vigilance on the part of the project owner can make it possible to anticipate this uncertainty. Regulatory opportunities can also be noted. Administrative doctrine can evolve to better identify, analyze, and deal with risks of all kinds. In France, this was the case for the socioeconomic, environmental, and financial assessment of projects or for development concessions (see Chapter 3).

2.6.6. Archeological risk and heritage opportunity The discovery of archeological remains during work is an important issue because it requires the work to be stopped, sometimes for a long period of time (several months or more). A preventive diagnosis of 10% of the surface area required for the project can be carried out to detect and study the heritage that may be affected by the project. If necessary, preventive excavations may be carried out. The discovery of a major site may require a review of the project’s route or location. The frequency is more or less difficult to establish depending on whether the territory is already known or less known for its archeological sites. The probability of occurrence is more or less easy to determine for the same reasons. Archeological studies can limit this uncertainty. However, they cannot be carried out over the entire route of a transport project, for example. The project owner is not immune to the unexpected discovery of a site in this case. The level of severity of this risk can be determined according to the knowledge of the site that one may have. It can be quantified by the additional studies to be carried out, the extra cost, or the delay in relation to the planning. The delay could reach several months, even 6 months for some lots of the South Europe Atlantic HSL. The financial impact of the additional cost can reach 1%–3% of the project cost for areas where excavations are the most important or longest (this amount concerns, in particular, the cost of stopping and the cost of resuming the site). If the duration of the excavations is longer than expected, and has an impact on the commissioning date, late payment penalties may also apply since this risk is assumed by the private partner9. In addition, the concessionaire will collect toll revenue on a deferred basis if the facility is under concession. The discovery of a remarkable site to be protected and enhanced can result in a new route or location for the project. The archeological risk can be considered as a heritage and cultural opportunity if the site can then be developed and opened to the public. There are also cases of association between the development project and the archeological site, which allow for mutual enhancement.

2.6.7. Environmental risk Environmental risk refers to the threats that a project may pose to the natural, physical and human environment. The causes and consequences of an environmental risk are generally known. Linear transport infrastructure can disrupt the ecosystem and the circulation of surface and groundwater. Irrigation or drainage of agricultural land may be threatened. It can affect the water table, significantly alter its characteristics and threaten the water supply of the inhabitants. A development project can cause soil pollution or noise or visual pollution for residents. The severity of this risk can be measured. The level of pollution emitted into the soil or air is measurable, such as groundwater, surface water or noise. The frequency can also be generally assessed. These risks are increasingly well known due to the deepening of impact studies since the enforcement of law no. 2010-788 of July 12, 2010, on the national commitment to the environment, also called Grenelle 2. The project owner considers the environmental impact of a project as data to be integrated from the project design stage, and tends to speak of “environmental data” rather than risk for known hazards. However, we can use the notion of risk as an unexpected vulnerability that occurs for a species or an ecosystem during project management.

2.6.8. Technological risk This category of risk covers risks of anthropogenic origin, such as industrial, nuclear, mining, or dam failure risks. These risks are regulated by strict regulations. The industrial risk pertains, in particular, to installations classified as SEVESO10. The latter contain dangerous substances (particularly chemicals). They may be placed in environments where population exposure can be significant, such as industrial areas on the periphery of urban areas, or near transport routes. The cause of these accidents may be a lack of procedure, inappropriate use of products, and so on. This type of accident can have human and social (injury, death, incapacity, etc.), environmental (e.g. pollution), or economic consequences. These consequences are classified according to severity scales. This risk is the subject of prevention measures with the technological risk prevention plan for establishments classified as SEVESO. The plan may include measures to control future urbanization by taking this risk into account. The mine is an underground or open-pit deposit that allows the exploitation of mineral or fossil substance deposits. Mining risk is related to the risk of collapse or accumulation of dangerous gases from abandoned or operating underground sites (which is the case in France). Surveillance and prevention measures can be put in place. In particular, a mining risk prevention plan exists if mining hazards are detected and can cause a significant risk to the population. These include ground movement, floods, dangerous gas emissions, soil and water pollution, and so on. The plan may provide for special urban planning regulations and

specific construction rules to strengthen buildings. The seriousness of this type of risk can be measured by the number of people injured or killed in the case of a serious event or by the amount of material damage. Nuclear risk refers to an event that may result in a release of radioactive materials into the environment and that is likely to have an impact on the population and the environment (irradiation and contamination). The causes of this risk may be the malfunction of a nuclear installation, the use of radioactive material or its transport. The severity of incidents and accidents is measured on a scale from 1 (anomaly) to 7 (major accident, such as Chernobyl)11.

2.6.9. Natural risk Natural risk pertains to the threats that natural events may pose to populations, buildings, or property. These risks can be the subject of preventive measures that make it possible to adapt to these phenomena and reduce the possible consequences and damage. The origin of these risks may be an avalanche, a flood, a landslide, a storm, a cyclone, a drought, and so on. We will consider the risks that can more particularly concern the production of a development project, namely the risk of flooding and the risk of ground movement. Ground movement is caused by a movement of the ground or subsoil, which results in collapse, subsidence, landslide or swelling of the land, or mudslides or lava flows. Landscapes can be modified: the steepness of slopes can be modified, the course of watercourses can change, and so on. Damage can be observed on the frame or on people (injuries, etc.). Preventive measures can be taken as part of the plan for the protection of natural hazards. They may pertain, in particular, to the possibilities and prohibitions of construction. The severity can be assessed by property damage and the number of people injured or killed. Frequency can also be assessed based on the knowledge of the site and the past ground movements. Flooding of usually unsubmerged areas results from flooding due to thunderstorms, rising groundwater levels, runoff, and so on. The risk of flooding can be aggravated by developments (buildings, networks, deforestation, etc.). The consequences can be human (injury, death, etc.), social (population displacement, etc.), material (damage to property), economic and environmental.

2.6.10. Market risk Uncertainty linked to the market concerns the evolution of the prices of raw materials and services used by the project owner. The causes (speculation, scarcity, etc.) and the consequences (increase in project cost) can be known.

Severity can be assessed by this cost. Frequency can be defined because statistical data from past periods provided assumptions about the change in price over time. The probability of occurrence can be defined.

2.6.11. The risk of force majeure Uncertainty related to events of force majeure refers to war, natural disaster, and so on. The consequences may be the termination of the project, its total or partial destruction, its continuation in particular security conditions, its reconstruction, and so on. The severity can be estimated by the cost of destruction, reconstruction, and so on. The frequency can be estimated if the cause of the risk is already well known (such as the risk of a cyclone or tsunami that characterizes certain regions and can affect a project). Concession or partnership contracts can be rather vague on the definition of force majeure in which risks of a very diverse nature other than war or a cataclysm can be included.

2.7. Internal project risks 2.7.1. Construction risk Technical risk pertains to events that may impact the construction or operation of the project, such as the collapse of a tunnel under construction. Possible technical causes may be known to engineers, but events are not always predictable. This was the case when the Eiffage group discovered longer geological faults that were differently oriented compared to the studies under the Albères massif when the Perthus tunnel was drilled by the Perpignan–Figueras HSL. The concessionaire of the line had to take the time to redo its engineering studies to adapt the tunnel construction to these new geological conditions. The consequences are also known (site stoppage, delay, insurance intervention, investigations, additional costs linked to specific measures, etc.). The seriousness of the event can be assessed by the additional cost of the technical consequences, the delay, or, sometimes, the injuries or deaths caused. In the case of the Perpignan–Figueras HSL, geological problems could have caused a 6-month delay in the commissioning of the project. This delay was avoided by reorganizing the work that caused the additional costs. Their amount was never made public. Since the additional costs were high, the concessionaire decided to negotiate with the licensors to obtain compensation (before the concession became bankrupt)12. The frequency of this risk may be difficult to determine due to the rarity of certain events. This is the case, for example, in Paris with the accidental drilling of the tunnel wall of the RER line A tunnel in November 2017 by a borehole in connection with the construction of the western extension of the RER line E at Porte Maillot. As a rare and unpredictable event, the A-line tunnel was flooded and service was interrupted for several days.

2.7.2. The risk of delay The risk of delay is a very frequent risk, which, in particular, results from the production of other risks that are external to the project (social, political, etc.). For example, the Paris Rive Gauche JDZ was commissioned to be completed in 2015 when it was launched in the 1990s, but now the completion is postponed to 2028. The project has experienced controversies that have led the project owner and Parisian-elected officials to review its composition in order to reduce the area for offices and increase that for housing, green spaces, and community facilities. The causes are, therefore, generally known and are very numerous. These include the unexpected discovery of an archeological site, a refusal by the CNPN to provide a favorable opinion on a project, opposition from associations or elected officials, the refusal of an owner to be expropriated, a collapse, and so on. The consequences may be the termination of the project, non-compliance with the project owner’s schedule, non-compliance with the clauses of the partnership or development concession contract, non-compliance with banking clauses allowing loans to be released, and so on. This risk is feared by project owners and banks because it is often linked to a financial risk. Indeed, a delay in the estimated delivery date of a project often means a delay in the collection of commercial revenues by the project owner (sale of housing or offices, tolls for transport infrastructure, and revenues related to the use of equipment). A delay may also be subject to penalties. Finally, failure to respect various deadlines of the schedule (provision of studies, obtaining administrative authorizations, DUPs, expropriations, construction stages, etc.) authorizes banks not to pay the private partner the various parts of the borrowed sum, which may put the latter in difficulty. The seriousness of the delay can be measured by the number of days of delay, the extra cost incurred and any penalties imposed by the principal. For example, the Elbe Philharmonic in Hamburg was opened to the public in 2017 with a 6-year delay due to insufficiently thorough studies. The CDU municipality had to finance an additional €500 million, an increase of 66% in the budget13. Frequency can also be assessed in general because this risk is very widespread. Delay can in some cases result in an opportunity. Indeed, the project owner may decide to review its work schedule by modifying the order of intervention of the trades compared to what was planned. This approach can optimize project production and ultimately save money on the budget.

2.7.3. Financial risk Financial risk refers to a shortfall in budget or revenue to cover the investment and operating costs of the project. This revenue shortfall may be related to lower-than-expected revenues, price and demand volatility, additional costs related to changes in the project during design

and consultation, or new operating conditions. The consequences are known and can result in a project halt (if it is not too late), the operator’s bankruptcy (rare), a request for additional public funding, a downward revision of the project’s characteristics, an increase in the price of services, a renegotiation of loans, and so on. Each project is independent from others with its own partnership or concession contract. The severity can be assessed according to the context by means of the cost or extra cost of the event to the project. The frequency can also generally be evaluated. It is a pretty common risk. According to several practitioners, an additional cost of around 7% for publicly funded transport projects, for example, is admitted as acceptable. The cost of these projects can reach several hundred million to several billion euros.

2.7.4. Commercial risk Commercial risk is related to commercial revenues, which in turn depend on whether or not attendance forecasts (e.g. in the case of a cultural facility), sales forecasts (in the case of commercial premises, offices, and housing), or traffic forecasts (in the case of a transport project) are met. The causes (adverse economic conditions, changing needs, market, etc.) can be more or less predictable. The consequences can be lower than expected commercial revenues and profitability, particularly for the concessionaire of a development project or a transport project who assumes operation at their own risk. Severity can be assessed by the percentage of estimated commercial revenue not covered. The probability of occurrence can be assessed. The assessment of this risk is central to public and private project management studies.

2.8. Conclusion The difference between uncertainty and risk is clearly established by the different disciplines that study these concepts. Expert opinion, experience, and knowledge of the field also count within project management when identifying a risk. Risk is multi–faceted. There are different types of risk. It may pertain to the project or the natural and human environment of the project. The risk can also be positive and provide opportunities. Risk can have a degree of subjectivity, especially if it is perceived. It can be territorialized because the representation that each actor makes of it is different and depends on their interests. Risk can generate other risks (and opportunities) in time and space. These different aspects of risk are reflected in the methods and procedures that have been

gradually developed since the 1990s to identify and manage risk in project planning and management. This diachronic analysis is discussed in the next chapter. 1 The term “damage” is used in the sense of damage caused to the project, its planning and implementation process, or its environment. 2 CNPN: Comité national de protection de la nature (the French committee for nature protection). 3 These are the mandatory deadlines for advertising, calls for tenders, and procurement related to MOP Act No. 85-704 of July 12, 1985, on public project management and its relationship with private project management. 4 Source: CLERE interview, November 19, 2013. 5 Source: RFF interview, January 9, 2014; RFF: Réseau Ferré de France (French company that previously maintained the railway network until 2014. It then became SNCF Réseau). 6 Source: Eiffage interview, November 19, 2013. 7 ZAD: zone à défendre (zone to defend). 8 Source: GIE CLERE interview, November 19, 2013. 9 Source: Vinci interview, March 31, 2014. 10 This designation concerns industrial sites with a major accident risk. This classification implies a high level of prevention. The rules relating to these sites are specified in Directive 2012/18/EU of July 4, 2012, known as SEVESO 3. 11 Source: https://www.irsn.fr/FR/connaissances/Installations_nucleaires/La_surete_Nucleaire/echelleines/Pages/sommaire.aspx. 12 Source: contact person wishing to remain anonymous, interview March 2014. 13 Source: Gylden A., “Grands chantiers en Allemagne, Kolossale Katastrophe!”, L’Express, online, August 8, 2014.

3 Diachronic Approach to Taking Risks and Uncertainties into Account in Planning, Consultation, Evaluation, Financing, and Project Implementation Practices 3.1. Introduction A diachronic approach is needed to understand how the institutional assessment, decisionmaking process, and public and private professional practices have been able to progressively take into account risks and uncertainties. This chapter determines the main chronological benchmarks based on an analysis of the laws, directives, and regulations that have governed the evaluation and decision-making process of development and urban planning projects since the 1970s and interviews with public and private project owners. This analysis is divided into three main periods. The period from the 1970s to the end of the 1980s was characterized by a legal framework for the evaluation and decision-making process of projects that focused specifically on foreseeable natural hazards and major accident risks related to industrial sites. The 1990s were marked by a gradual integration of social uncertainty into the decisionmaking process with the introduction of the public debate, applied in major development projects (e.g. highways or high-speed lines). However, these projects have not always benefited from this stage. Consultation has also gradually been incorporated into the project evaluation and decision-making process in an attempt to limit controversies that could create risks for the project. A breakthrough occurred in the late 1990s. The opening to competition requested by the European Community in awarding public–private partnership and development concession contracts and the entrance of the private sector (privatization of semi-public companies with highway concessions, the possibility of using private developers for development, or JDZ operations) have led public authorities to integrate the notion of risk into several reference texts on contracts, socio-economic evaluation, and have led practitioners to utilize formal risk management to a greater extent (even if it already existed in a different form in the 1980s and 1990s). Social risk, under the influence of protest movements against urban projects or major infrastructure projects, and environmental risk, under the influence of political ecology and societal awareness of the effects of projects on the natural and human environments, have also become increasingly important in assessment and consultation practices.

3.2. From the 1970s to the end of the 1980s: only natural and technological risks were addressed by the texts

3.2.1. The legal framework for environmental assessment and public participation excluded the concepts of risk and uncertainty The 1970s saw the emergence of an awareness of the environmental impact of projects within public authorities, partly under the influence of the environmentalist trend. The challenge to some infrastructure projects began in the 1970s, initially in a marginal way. This was particularly the case in the Île-de-France region where local residents, supported by intellectuals and political activists, successfully challenged the Vercingetorix radial project, the Cergy–La Défense aerotrain project, and sections of the A86 highway (Larroque et al. 2002). It was based on a general ecological discourse on the effects of economic growth. It did not dispute the need for this growth, provided that limits were set at a reasonable pace. It called into question an unthinking use of natural resources, space, uncontrolled technological progress, and increased mobility. The end of the 1980s saw the formalization of a critical reflection on major infrastructures, their utility, impacts and routes. It concerned HSL lines, nuclear power plants, the Rhine– Rhône canal and highways. This initial ecological thinking has reached the general public under the influence of media. Associations were also created1. It is in this context that Act No. 76-629 of July 10, 1976, on nature protection, created the impact study. This first text, provided for the study, was made public, which marked the beginning of the decision-making process in major projects as public information. Environmental protection and public information were linked. Reading this law, it is clear that it did not involve the notion of risk or uncertainty (whatever its nature) and used notions of “impact” and “removal, reduction of, or compensation for harmful consequences for the environment” of the projects2. The impact study focused mainly on effects such as fauna, flora, water, and subsoil. The effects of a project on the environment were considered as data. These data could then be taken into account in planning and conduct of the project. Public consultation was then carried out by means of a public inquiry, defined since the 1970s as “an information and consultation procedure to gather comments from the population, elected officials, associations, etc.” It is carried out whenever a project may harm the environment3. Act No. 2010-788 of July 12, 2010 on a national commitment to the environment (Article 236) adopted this definition. Public inquiries have existed since the early 19th century but were not codified by law until the late 1960s. They refer to the notion of public utility and apply when a project is of greater interest to the community than individual interests. The legality of the public utility of a project is assessed by balancing the advantages and disadvantages it generates for the community and for individuals. A project declared to be in the public interest allows landowners to be expropriated (Ordinance No. 58-997 of October 23, 1958, reforming the rules on expropriation in the public interest). “An expropriation operation may be legally declared of public utility only if the infringements of private property, the financial cost and possibly the social inconveniences or the infringement of other public interests that it entails are not excessive in view of the interest it presents”

(Decision “Ville nouvelle Est” rendered by the Conseil d’État on May 28, 1971). The Directive of May 14, 1976 on public information and the organization of public inquiries introduced the obligation for public authorities to provide the public with the main guidelines of the project (nature, cost, and consequences), the conditions for integration into the environment, and the measures planned to provide for it. The alternatives have to be included in the project, as well as the reasons for choosing a particular bias, emphasizing the expected benefits and possible disadvantages. The reform of the urban planning code (December 30, 1976) extended the rights of associations. Finally, Act No. 78-753 of July 17, 1978 on various measures to improve relations between the administration and the public and Act No. 79-587 of July 11, 1979 on the motivation of administrative acts made public access to administrative documents more flexible. The Bouchardeau Act No. 83-630 of July 12, 1983 on the democratization of public inquiry and environmental protection introduced the study of the project’s effects on the environment (noise, traffic modification, etc.), which made it possible to extend the inquiry procedure by consulting residents, as well as expropriated persons, on these subjects. The objective of the consultation was to determine whether or not there was a public utility. Various criticisms have been made of the new procedure (Bouchardeau 1983). The survey was too late in the project planning and implementation process. An earlier consultation would have made it possible to better integrate the population’s demands. This criticism came in the 1990s with the challenge of the Mediterranean HSL. The Bouchardeau report of 1983 questioned the real role of the investigating commissioner, especially his importance and independence in the decision-making process. It appeared that the formalization of the investigation multiplied the rules and possibilities of conflicts. Finally, if the information given to the public was considered complete (profiles, profitability calculation, geology, traffic forecasts, etc.), it technicalized the debate, which made it difficult for the general public, unfamiliar with this type of information, to access it. Council Directive 85/337/EC of June 27, 1985, on the assessment of the effects of certain public and private projects on the environment, confirmed the European Community’s willingness to assess the impact of all types of projects on the environment and to allow the public to access environmental information in a single text. In particular, the text provided that the direct and indirect effects of a project on man, fauna, flora, soil, water, air, climate, landscape, tangible property, and cultural heritage should all be assessed. The text also stressed the need for the Member States to “ensure” that the public concerned could express their views before the project was launched. However, the scope of such citizen participation in the decision remained limited, in the sense that it was up to the Member States to determine the public concerned. It was also up to them to specify how the public could be consulted (e.g. by public inquiry). They were also asked to identify criteria for selecting projects for evaluation. The terms risk and uncertainty are not present in this text, as these do not refer to situations of uncertainty or risk such as project controversies, extra costs, and threats to the

environment. The decision-making process for major projects remained a closed system during the 1980s and early 1990s, to which some senior officials of the Ponts et Chaussées corps remained favorable. For example, the East HSL did not benefit from public debate. For this high-speed line, a circular of November 1993 regulated the application of the Circular Bianco No. 92-71, which establishes public debate4. It specified that “the elected representatives, consulted within the framework of the steering committee, stressed the transparency and democracy that govern its functioning. They wanted the provisions of the circular to be applied flexibly so as not to delay the preparation of the East HSL. It was therefore considered and decided that: the debate on the legitimacy of the project had taken place during the Essig mission and that its report would be the specifications, put in the public inquiry file; and that the steering committee for the studies had met the requirements of transparency and reliability of information and, as the elected members did not wish to set up a follow-up committee for the debate, the committee took its place…” (Lolive 1999). The same can be said for the Mediterranean HSL. Meetings were held by SNCF at the end of the 1980s during studies to involve the local community as much as possible in the project but not in the decision to carry it out. The experts considered that the decision was the responsibility of the State and was not a collective process, which is not what some individuals or local elected officials would have liked (Ministère de l’Equipement, du logement, des Transports et de la Mer 1990). Various interviews interpret this position as follows: making decisions on these projects in a closed decision-making system helps to maintain control and, therefore, limits the risk of exposing the decision-making process and the project to unwanted and unknown external events. Practitioners in the private or public sector with 30 or 40 years of experience note a general willingness to keep, as far as possible, the costs announced during the 1970s and 1980s, and especially the possibility of keeping them because the experts kept a certain control over the project and its characteristics. A former manager of RATP and then SNCF said that:

“There was a certain priority when we were developing our projects. I am thinking of the RER5. I was at RATP at the time. In the 1970s, even if we made mistakes in the technical management of the project, we were constantly concerned about economic evaluation. We were encouraged by Auber’s project. The Auber station had been so complicated to build (in an former bed of the Seine, with circulating water), we didn’t know how to do it. We took maximum precautions because we could potentially bring down the Opéra Garnier. It was very expensive. This is where we put in place a new design for the entrances to this station, which have nothing to do with the entrances to Etoile or Nation. We bought a building on the Rue Auber to make an entrance with an escalator and then sold the building. We used different methods with the objective of always reducing costs and staying within the declared budget. The financial aspect took precedence. Today there is no resistance either to the development of the project or to the realization of all environmental demands. We do anything. The Tours–Bordeaux HSL project […], Réseau ferré de France (RFF), has accepted everything. As far as the Mediterranean HSL is concerned, we still cross the Rhône five times. There are abuses today that are really damaging. The East HSL was well received by local elected officials. We didn’t have any major drifts in terms of implementation. I regret that the cost of the projects is charged. When we discussed the Tours–Bordeaux project with the Aquitaine region in 2003-4-5, this project cost €4 billion, today it is 8”6,7.

3.2.2. Only the concepts of foreseeable natural risk and major accident risk were regulated during the 1980s The notion of natural risk explicitly appeared with the adoption of exposure plans for foreseeable natural hazards in 19828. These plans had the value of a public utility easement and delineated areas at risk of flooding, avalanches, and so on. Act No. 87-565 of July 22, 1987, on compensation to victims of natural disasters, introduced measures of prevention, protection, and safeguarding persons and property at risk in order to limit or eliminate the negative impacts of events. Act No. 95-101 of February 2, 1995, on strengthening environmental protection, progressed further in risk management by replacing old risk exposure plans with plans to prevent foreseeable natural risks. These plans ensured that risks were prevented and negative impacts on property and people were reduced. Since 20039, technological risks have benefited from a specific prevention plan. These prevention plans were carried out by prefects independently of impact studies. However, the analysis of the latter shows that they used the results of the plans to locate the project alignments as well as possible in relation to the areas at risk or to limit the impact of a linear project such as a high-speed line or a highway. For example, a location of such an infrastructure could contribute to increasing the risk of flooding of certain areas during flood periods. Directive 82/501/EEC of June 24, 1982 (Seveso 1), on major accident hazards in certain industrial activities, considered that “the protection of the public and the environment and

safety and health protection at work call for particular attention to be given to certain industrial activities capable of causing major accidents” particularly after the Seveso disaster in 1976. It has put in place the measures applicable by manufacturers and public authorities in member countries to assess and prevent these risks.

3.2.3. Risk management still not very formalized as standards The concepts of risk and uncertainty do not appear in the texts that govern the decisionmaking process for major projects. However, project owners could carry out risk studies during the 1980s. These studies were developed within the semi-public companies that operate highway concessions (SEMCA), at Cofiroute, EDF (French electricity company), in the field of nuclear power plants and then at SNCF. The methods were mostly empirical, rarely written and formalized. That is why we could not find any trace of them. This was even truer during the 1990s and 2000s. A project manager of the East HSL says that risk management10: “was less formalized, but it has always existed. Maybe the way it was done was different. Today we wanted to make it a small management tool. We are trying to formalize it, to identify the risks, if only because with the rigorousness of the safety demonstration of the structure for commercial commissioning, we are entering into these approaches of risk analysis, preliminary analysis, so we are necessarily obliged to change the method to treat it”. All interviewees who managed projects during the 1980s and 1990s felt that there was, at the time, a desire on the part of the project owner to keep project costs, which effectively limited financial risk, a more closed decision-making system that limited costly project modifications11, and fewer regulations that regulated contracts and left more flexibility to private project owners to carry out the work. A Cofiroute project manager explains12 that: “in 1990, there were about 40 texts. Or 50. In 2001, we had an amendment that we negotiated and then the government wanted to add texts and regulations at all costs. We fought like devils to limit the number of them and still managed to reach 110. Then the State launched a call for a concession project for Artenay-Courtenay highway (A19). They made in the call for concession a list of applicable texts […] it was estimated that there were about 600 of them […]. There would be two cases: good surprises and bad ones. The more you lock the system into rules, the fewer opportunities you have to avoid unpleasant surprises and collect good surprises, so somewhere along the way you increase the risk. For me it is very clear. I’m not sure that today we could change the profile lengthwise like that. Suppose that this has an impact on the investigation of water law on the grounds that the flow of water is not done in the same way, it may be necessary to carry out a new investigation into water law, and from that moment on we will not take the risk and therefore we will not avoid the risk. That is fundamental. There can be 100% of the project price in a joke like that”.

3.3. The 1990s: taking into account social uncertainty for major infrastructure projects (transport, energy, etc.) 3.3.1. From the late 1980s to the early 1990s: the (para)public project owner managed social uncertainty by increasing public information by keeping control over the design and implementation of the project Cases of public disagreement with transport projects increased in the late 1980s and 1990s (case of the Mediterranean HSL, the A400 Annemasse–Thonon-les-Bains highway, etc.). These sometimes severe disputes were able to block projects for many months (A51 Grenoble–Sisteron), force SNCF to review the project (Mediterranean HSL), and introduce a certain uncertainty to the decision-making and planning process, whose closed system gradually began to crack. Projects could be perceived as a risk to the natural and human environments by the public or environmental protection associations. At the end of the 1980s, professional practices evolved to further territorialize transport projects, the main subjects of dispute, and to try facilitating their acceptability and the decision-making process, but the project owners retained control of the decision-making process. Chronologically, this development first affected highways with Circular No. 87-88 of October 27, 1987 from the Road Directorate. The HSL interconnection in Île-de-France and the East HSL were the first new lines to experiment with this type of practice even before the publication of a specific reference text. Circular No. 91-61 of August 2, 1991 finally defined these practices for new high-speed rail lines. 3.3.1.1. Circular No. 87-88 of October 27, 1987 from the Road Directorate Circular No. 87-88 of October 27, 1987 of the Road Directorate on the construction and development of concessioned highways summarized the texts on project management, the number of which “could be a source of uncertainty” (p. 1). It has defined three phases of studies (preliminary studies, preliminary summary project, and preliminary highway project studies). This circular, which was not published in the Official Gazette, included in the study process the need for the State to consult local elected officials, associations, and consular chambers at each stage of the studies. The use of this text is to detail the means of avoiding any misunderstanding with the local environment. “In order to avoid any misunderstanding at local level, it is, therefore, requested […] not to leave at the disposal of local authorities any document whose level of detail could suggest a clarification that is not real.” This circular also left enough flexibility for the project owner to be able to develop the project afterward, which shows that the latter had to keep control over the design and characteristics of the project: “these consultations must reserve the possibility of specifying the characteristics of the highway at later stages of the study, or even modifying some of them, if this seems desirable.”

3.3.1.2. The interconnection HSL in Île-de-France and the East HSL A project manager of the Interconnection HSL in Île-de-France states13 that: “when I took over the Interconnection HSL in 1988 […], I suspected that a project like this in Île-de-France, less than 100 km from Paris, involving quite a few inhabitants, would be difficult to manage. There was a question related to the acceptability of the project. The Prefect of Seine-et-Marne at the time was to be Christian Blanc. It was a time when prefects were really strong actors and controlling these risk problems (this was also the case for the East HSL). Since then, it has been less so. I don’t know if we called it a risk. But when the Prefect of Seine-et-Marne sends you a police van every time you have a meeting in a town hall, it is because he has identified a problem. In 1988 […], there was no public debate. I had built the communication on what would promote the acceptability of the project. It was traveling exhibitions, I told my DG I want someone to take care of communication”. Practitioners did not consider the controversial issues of the 1970s and 1980s projects as risks. This evidence shows that project managers relied on government intervention to help address these acceptability issues. Various texts have supported the need to provide the population free access to environmental information. Council Directive 90/313/EEC of June 7, 1990 on the freedom of access to information on the environment was intended “to ensure freedom of access to and dissemination of environmental information held by public authorities and to lay down the basic conditions under which such information should be made accessible.” 3.3.1.3. Circular No. 91-61 of August 2, 1991 on the establishment of projects for new high-speed rail lines Circular No. 91-61 of August 2, 1991 on the establishment of new high-speed rail line projects and the respective roles of the State and SNCF in the conduct of studies and procedures, based on the previous practices of the Road Directorate for highways, which were more progressive, followed a three-stage procedure that included studies and consultation. This procedure was applied for the first time to the East HSL. – The preliminary studies made it possible to choose a 1 km wide corridor after a technical, economic, and environmental comparison of several corridors, after consultation with the Ministries of Equipment and Environment and the local environment by the prefect. The selected time zone was the subject of a ministerial decision. – The preliminary draft (APS) made it possible to define the 300 m band within the 1 km zone after the administrations’ opinion had been issued and the prefect had consulted the local community. The public inquiry focused on this 300 m strip. – The detailed preliminary project (APD) defined a 1/5,000 route on the basis of previous studies, a consultation of ministries, and the local community conducted by

SNCF. The interest of this new procedure for the State was to be able to give a role to everyone – elected officials, local authorities, and project owners – in the consultation process. In addition, the Minister of Equipment had to validate each step, which reinforced his role in the decision and could offer – without saying it officially – a guarantee against a risk of contestation and return to a previous state of the project. With regard to planning, the text stressed the need to “identify as soon as possible any element that might prejudice the implementation of the operation.” This tactic consisted of anticipating potential social, technical, political, financial, and environmental issues and planning solutions to adapt or reduce them. The project owner’s speech on the East HSL was very marked by this practice in the interviews we were able to carry out. This text referred, without naming them, to situations of uncertainty or even risk. This new procedure has not been applied to the Mediterranean HSL. The Ministry of the Environment has not succeeded in obtaining agreement from the Ministry of Public Works that the 1991 HSL project, which is the subject of environmental challenges, be reviewed in the context of an APS and be part of a structured procedure for studying and consulting other services (Lolive 1999). The decision-making system has remained closed. This has prompted the Ministry of the Environment to set up a resistance mechanism by approaching environmental protection associations to modify the Querrien route (Zembri-Mary and Campagnac 2014).

3.3.2. The 1992 Bianco circular and the 1995 Barnier law allowed the public to participate in the public debate but were not always applied The movements challenging the Mediterranean HSL have prompted the State to consider opening up the decision-making process to the public, which is still limited. The major national debate on major transport infrastructure, which followed the controversy over the Mediterranean HSL, led, in 1992, to the publication of the Prefect Carrère’s Transport Destination 2002 report (Carrère 1992). He proposed that consultation should begin well in advance of the public inquiry and that a regional debate on the usefulness of the project should be initiated. Bianco Circular No. 92-71 of December 15, 1992, on the conduct of major national infrastructure projects, introduced the public debate. The first lines of the circular noted that the Inland Transport Orientation Act No. 82-1153 of December 30, 1982 did not specify the organization of democratic debate and that “these shortcomings often lead to the legitimacy of projects and any decision to implement them being called into question.” This observation legitimized the initiation of a debate. The circular did not refer to risk or uncertainty. Public debate could be interpreted as opening up the decision-making process to the public, and as a way of channeling controversies about projects without calling them into question. The Ministry of Public Works was suspicious of this debate, which took time to set up. Jacques Lolive (1999, p. 263), who studied its genesis,

points out that the officials in charge of the East HSL and the Languedoc-Roussillon HSL preferred to apply Circular No. 91-61 of August 2, 1991 rather than Circular Bianco No. 9271 of December 15, 1992 on public debate. We interpret it as a preference on their part to follow a project management procedure rather than to set up the first public debates and open up the decision-making process. Many other projects of this period (A65 Langon–Pau highway and South Europe Atlantic HSL) did not benefit from a public debate, a situation that environmental protection associations regret today14. In addition, as J. Lolive mentioned about the Rhine–Rhône HSL project, the study process was conducted independently of the consultation process. The separation between these two approaches made them impervious to each other and the content of the consultation could hardly influence the content of the project. The Barnier Act No. 95-101 of February 2, 1995, on strengthening environmental protection, established the Commission nationale de débat public (CNDP15), which marks a more marked beginning of opening up the decision-making process to the public. The CNDP made it possible to organize a debate with the public on the objectives and characteristics of major public operations of national interest, with a high socio-economic stake or having a significant impact on the environment. The debate was about the opportunity of the project and its characteristics. In addition, for the first time, the text dealt with the question of serious and irreversible damage to the environment and the precautionary principle, whether risks are related to a development project or natural risks. With regard to the former, the text specified that “in cases where the damage to the environment or cultural heritage likely to result from a development or work project justifies it, the declaration of public utility may include specific requirements.” These requirements took the form of the State’s commitments and were intended to reduce and compensate for the “harmful consequences of such developments or works on the environment.” Natural hazards (floods, landslides, etc.) have been addressed in terms of prevention in plans to avoid foreseeable natural hazards. The verb “to risk” has been used to refer to the possibility that a project may have an impact on the environment. But the text did not use the term environmental risk (as for natural hazards). Instead, practitioners refer to “environmental data” that are taken into account in the development of the project. At the end of the decade, only natural and industrial risks were regulated, given the danger they can represent for the environment and the health of the populations concerned. The Barnier Act No. 95-101 of February 2, 1995 introduced, for the first time in project management, the notion of damage to the human or natural environment that a project may generate. The management of projects began to be subject to risk management, but this had not yet been formalized in the form of successful referentials.

3.4. 1997 to present: financial risk, risk to the project environment, social uncertainty, political risk, and traffic risk are gradually being integrated into the assessment process 3.4.1. A progressive and formalized consideration of risks in the evaluation process of infrastructure, development, and urban planning projects 3.4.1.1. The impossibility of financing loss-making rail projects for public project management Article 4 of RFF’s16 articles of association stipulates that the public institution “may accept an investment project on the national rail network included in a program at the request of the State, a local authority or a local or national public body only if it is the subject of financial assistance from the applicants in order to avoid any negative impact on RFF’s accounts over the depreciation period of such investment”. The purpose of this article was to avoid the creation of non-depreciable debt. It was set up following the FRF 200 billion debt that marked SNCF17 in the 1990s. RFF took over ownership of the rail network when it was created in 1997 and is now responsible for its maintenance, improvement, and extension. RFF could not finance a project at a loss so it was interested in a risk analysis. The objective was twofold: to assess the financial robustness of the projects on the one hand, and to make a choice between fully public financing18, under concession, or partnership contract, on the other hand. RFF (SNCF Réseau) has developed a flat-rate evaluation method to assess the financial robustness of all projects in the preliminary study and APS phase, a probabilistic evaluation method for major projects (HSL, new lines) in the APS and APD phases, and finally, a more complex probabilistic method when the State decided to build the South Europe Atlantic HSL concession and the Brittany–Pays de la Loire HSL partnership contract19. The flat-rate method (e.g. used for the Rhine–Rhône HSL project) includes a risk margin in the flat-rate inflation discount rate. This method consists of analyzing the income and investment costs with and without the project over 20 years for a small rail project and 50 years for an HSL. The ratio between revenues and costs is discounted until the date of commissioning. It makes it possible to determine the share of financing that would accrue to RFF (SNCF Réseau), provided that this financing is not made at a loss. Risk is included in this method by adding 3% risk margin (of all kinds) to the 5% debt discount rate. This discount rate is calculated based on the distribution of past rates and already includes a risk margin. The probabilistic approach addresses both risks and uncertainties. Uncertainties are first modeled on the basis of past statistical series. They are defined as cyclical, apply to all

projects, and concern the cost of construction, the quality of labor, labor costs, transport costs, and so on. The method then distinguishes between risks. These are specific to each HSL project. The risks taken into account may be: the risk of the private partner not obtaining the loan, the risk of interest rate fluctuations, a time lag in financing of co-financiers, the risk of default by the private partner, the level of traffic and pricing, the risk of regulatory changes, the environmental risk (archeological or other), and the risk of dispute. As part of this financial analysis, a provision for each risk selected is assessed in the project cost if the probability of the risk is high and if it has a significant financial impact. Otherwise, the event is included in the risk of delay. RFF (SNCF Réseau) calculates a probability for each uncertainty or risk retained (for which there are reliable data) and the impact of the probability of that risk or uncertainty on the overall cost and revenue of the project. The use of the concession for the South Europe Atlantic HSL and the partnership contract for the Brittany–Pays de la Loire HSL forced RFF to integrate into the probabilistic method the risks specific to these contracts for other projects and the risks generated by other lines that could impact the Brittany–Pays de la Loire and South Europe Atlantic HSLs. Indeed, if a contract is specific to a line, it can impact the whole network (unlike a highway). Highways may have different toll rates, whereas for railway lines, train path rates must be established in relation to those charged on other lines. In addition, over the past decade, RFF has acquired two tools to assist in project management. The first is a risk matrix such as those used in construction groups (Eiffage, Vinci, etc.) or other sectors of activity. The method consists of: – identifying the project’s constraints and the potential impacts of these constraints on the cost, commissioning date, and overall performance of the project throughout its life; – prioritizing the risks according to their potential impact, severity, and probability; – treating them, provided they are considered unacceptable, in three possible ways: - reducing them by acting on their causes or consequences; - transferring them to an insurer or by a contract; - covering them by making a financial provision. Knowing that it is difficult to keep statistics on the risks inherent in major projects because of the small number of them and the highly variable context of each project, expert opinion is used often enough by RFF (SNCF Réseau) to identify, analyze, and treat the risk. The importance of identifying, analyzing, and continuously addressing all types of risk from the very beginning of the project makes it possible to anticipate these risks as far as possible. This systemic approach to risk also makes it possible to increase the overall performance of

the project in terms of cost, time, and quality. This method is used by RFF (SNCF Réseau) from the preliminary studies to the DUP or commissioning, depending on the financing method chosen. It is superimposed on studies planned for by the official consultation and project management procedure (APS, impact study, public debate, public inquiry, public inquiry, APD, etc.). RFF (SNCF Réseau) also implements a context study. The latter is not explicitly intended to identify risks, however, it can contribute to this. During this study, the public institution carries out a territory analysis to determine the socio-economic context and the actors in the sectors concerned by the route. This analysis consists, in particular, of identifying the actors (associations, elected officials, chambers of commerce and industry, etc.) present and their position in relation to the project. This diagnosis makes it possible to detect possible subsequent decision-making blockages that could generate a risk of controversy around the project or its territorial impacts or a risk of delay. There may be a relationship between the practices introduced by Circular No. 91-61 of August 2, 1991 and the current practices of SNCF Réseau. The objective of knowing the environmental, political, social, and financial issues in advance so that the project owner can adapt the project to these issues, optimize it, or give a technical opinion on the impossibility of taking demands into account is common to the context study, the ongoing consultation of RFF (SNCF Réseau), and the circular. However, the interviewed project owners were unable to confirm this hypothesis with certainty. 3.4.1.2. The end of highway linkage and the privatization of SEMCAs mark the beginning of private investors’ participation in the capital of companies and the beginning of “corporate governance” that seeks to limit risks At the end of the 1990s, the European Community pointed out that, in France, SEMCAs were not complying with European competition rules. SEMCAs systematically became concessionaires for new highways (tenders were not preceded by the usual advertising) and benefited from the equalization of toll revenue between profitable and amortized sections and unprofitable sections in order to be able to finance the construction of new highways or their maintenance. As a result of these criticisms, advertising became mandatory before any call for tenders and equalization was prohibited. Order No. 2001-273 of March 28, 2001, reforming the operating regime of certain highway concession companies, made the accounting regime of SEMCAs compatible with that of private companies. Each highway concession had to be the subject of an independent contract, which made equalization impossible. The State had to abolish its financial aid to the SEMCAs, its commitments to take over liabilities at the end of the concession, or the authorization to carry over structural charges (depreciation and financial costs), which could not be financed from operating revenue until the break-even point was reached. Deferring structural loads allowed SEMCAs not to consider them as losses in the annual balance sheet, which could lead to a negative result in the event of high losses. The alignment of the accounting regime of the SEMCAs with the general regime was also

intended to allow them to apply for tenders within and outside the EC. SEMCAs had to apply strict profitability rules to each highway construction and operation contract, since any government subsidy or equalization of another concession or deferral of structural charges was prohibited. The privatization of SEMCAs took place in this context from 2003 onward. The extension of the duration of concessions from 15 to 20 years has enabled new private companies to finance the part of the costs borne by the State before 2001 and the abolition of derogations from the general accounting regime. The good financial health of ASF-ESCOTA enabled the Treasury to privatize it first and finish with SANEF, SAPN, APRR, and AREA in 200620. These highway companies have been acquired by banks and institutional investors (pension funds, insurance, etc.), often with a majority shareholding. Shareholders may also include construction companies and concession companies, as shown in the first two tables below on highways and the third table on high-speed lines. Table 3.1. Distribution of the types of shareholders within the capital of highway concession companies privatized in 2002 and 2005 (in February 2019) Highway concession Investment funds company

Construction Other (including companies individual shareholders)

APRR AREA21

Macquarie (50%)

Eiffage (50%)

Vinci (owns 100% of ASF, Cofiroute, Escota, and Arcour)22

European, French, American, and other institutional investors (72.4%)

Individual shareholders (16.7%), treasury shares (7.2%), and Qatar holding LLC (3.7%)

Table 3.1 shows that the majority of highway concession companies privatized in 2002 and 2005 were held by investment funds in February 2019.

Table 3.2. Distribution of the types of shareholders in the capital of private highway concession companies created since 2005 (in February 2019) Banks

ADELAC (A41)23

Investment funds

Macquarie Autoroutes de France 2 (25.1%)

Concession Building and public companies works APRR (49.90%)

ALICORNE (A88)24

CDC (45.57%), Axa private equity (15.40%)

ALIS (A28)25

Mirova (25%), Aberdeen Infrastructure (13.16%), PPGM (33.17%)

A’LIENOR (A65)26

SAPN (8%), SANEF (11.67%) SANEF (35%)

Operator design offices

Eiffage (24.99%)

NGE (12.91%), Spie Batignolles (12.24%), Demathieu et Bard (4.96%), Malet SA (3.97%), Valerian (0.66 %) Bouygues (14.93%), Quille (8.29%), DTP Terrassements (9.95%)

Egis (4.29%)

Egis (8%)

Eiffage (65%)

The capital of these concession companies created since 2005 is mainly held by investment funds, historical concession companies (former SEMCAs), banks, and construction companies, whose capital is also partly held by institutional investors (Table 3.2). Table 3.3. Distribution of types of shareholders in the capital of concessionary companies or holders of an HSL partnership contract in February 2019 SEA HSL (LISEA27 company managed by Vinci Concessions) Nîmes Montpellier bypass (OC’VIA consortium)28

Investment funds

Construction companies

Ardian (16.8%), Meridiam (24.4%), CDC (25.4%)

Vinci and Vinci Concessions (33.4%)

Meridiam infrastructures Fideppp (participation unknown)

Bouygues Colas Alstom Spie (participation unknown)

The capital of these concessionary companies or companies holding an HSL partnership contract is held mainly by investment funds and construction companies (Table 3.3).

3.4.1.3. Investment funds and banks, which are shareholders in companies holding major project contracts, have strengthened risk management in corporate governance Investment funds buy shares of a company by increasing its cash flow with the hope that this money will increase the value of the firm and its shares over a period of 3–10 years. They played an increasingly important role in the functioning of the economy from the mid-1980s onward for two reasons. On the one hand, stock markets, which operate in the short term, were unable to meet the long-term financing needs of companies, accentuated by the development of international competition. On the other hand, the stock markets generated a very fragmented, fragile, and volatile shareholding structure in the event of difficulties. Among these funds, we can note institutional investors (pension funds, insurance companies, and collective investment schemes in transferable securities – UCITS) who have been collecting a growing share of household savings over the past 30 years (Boucher 2010). They are particularly represented in the capital of highway and high-speed rail concession companies (Tables 3.1–3.3). This evolution in household savings management has gradually led to a concentration of ownership. Compared to other investment funds that focus on high risk-taking (hedge funds), they respect the profitability objectives of funds invested for their clients and seek to limit risk-taking through appropriate tools. The companies in which they invest are equipped and develop tools for identifying, analyzing, and treating risks, in addition to the experience acquired on previous projects. Banks and investment funds communicate little about their investment and corporate governance practices. Information that provides a general approach to this financialization process has been obtained from the scientific literature. It is supplemented by an analysis of the activity reports of each company holding a concession or partnership contract since 2000. 3.4.1.4. Business practices must maximize share value and reduce investor risk Companies’ business models have changed in recent decades. From the 1950s to the 1970s, companies operated by separating ownership of the means of production and its management, which was entrusted to the manager. The shareholders took the direct risk of losing money in the event of bad business. The increasing participation of institutional investors, represented by financiers, in the capital of companies since the 1980s and 1990s has enabled them to impose more and more practices, objectives, and standards on managers – known as “corporate governance” – which are compatible with the objectives of maximizing the share value. This practice consists in setting ambitious targets for the company’s return on equity and transferring the risk to the company and the employee. The number of employees recruited or let go and the terms and conditions of this recruitment (fixed-term contract, permanent contract, part-time work, interim, etc.) make it possible to adjust the wage bill to the

company’s needs and the short-term objectives to be achieved (Boucher 2010). The increasing liquidity of markets and the ability to buy and sell shares at very short notice for these institutional investors can encourage executives to follow their instructions (Stellian 2012). For example, the setting up of a concession or partnership contract in France is done in the following way: the private partner enters into a concession or partnership contract with SNCF Réseau or the State, but all risks are legally transferred by the private partner to the design–builder group and the operations–maintenance group, which are its subsidiaries and to which it is bound by a contract. Employees in these two groups carry out their risk analysis and seek to comply with the deadlines agreed with the banks and the commissioning deadline agreed with the licensor, under pain of penalties. This arrangement was chosen for the South Europe Atlantic, Brittany–Pays de la Loire HSL, A65 Langon–Pau highway, and so on. An event, planned or not, and its consequences, which for the infrastructure would cause additional costs for the designer–builder or operation–maintenance groups. It must be financially covered by them, except in very special cases29. It should be noted that this structure already existed at Cofiroute, a private concession company, before the 2000s. The designer–builder and operation–maintenance groups also directly manage their payroll according to the needs of various phases of the worksites and the peak periods for operation – school holidays – and maintenance. The objective of increasing profitability and maximizing shareholder value can lead investors to set financial objectives for managers and executives and to reduce capital and operating expenses or adjust the wage bill and resort to debt. The latter allows the company to raise funds and can produce a leverage effect. Debt can avoid using revenue and thus increase dividends per share (Stellian 2012). Debt is supported by low interest rates and the development of global liquidity. The funds invest only 30% or 40% of the company’s purchase price. The balance is financed by a loan repaid by the acquired company. This debt forces managers and executives to generate income to repay the loan and financial expenses. For example, the privatization of SANEF in 2005 forced the company to pay an extraordinary dividend to an intermediate financial structure – HIT – to repay part of the debt amounting to €0.75 billion30. It should be noted that the highway concessions of the SEMCAs privatized in 2002 and 2005 were often already amortized, which enabled the newly formed groups to quickly generate mobilizable cash flow to guarantee shareholder value for shareholders and thus ensure the transition between SEM management and management by investment funds. These financial objectives can be translated into operational and performance objectives (production, turnover, quality, etc.). A comparison between ASF’s annual report for 2001 and 2002 shows this evolution of practices. 2002 was the year in which ASF’s capital was opened up to investment funds and other shareholders. The 2001 report was published by the Caisse Nationale des Autoroutes (CNA) and concerns all SEMCAs. The CNA was an administrative

public institution with financial autonomy. It was responsible for providing concession companies with resources to finance the construction and development of toll highways. It issued and contracted loans on national and international markets. The Caisse des dépôts et consignations was responsible for its administrative, accounting, and financial management. The CNA’s 2001 report31 was a document that clearly showed its institutional role in financing SEMCA: – the overall activity of the SEMCAs for the year (construction rate, traffic, operating income, debt, financial results, and outlook: turnover, debt, and investments). The results were presented for all SEMCAs; – the results and balance sheet of the CNA’s activity for the year. It showed the borrowing carried out by CNA on the markets on behalf of SEMCA, the loans granted to them by project, and CNA’s accounts for the financial year (balance sheet and income statement). After its privatization in 2002, ASF published its first activity report32 that showed very different internal operations and financial practices33. It has been prepared in the usual form of reports from listed companies. Its content covered the main financial ratios, the income statement, and the consolidated balance sheet. Traditional themes such as human resources, sustainable development, network expansion, traffic, safety, and so on were also discussed. The report highlighted the increased financial results that enabled the Group to “respect the commitments made at the time of the capital opening in 2002 and to place ASF in a growth dynamic” characterized by a record margin of 62.3% of turnover (i.e. 2.6 growth points), a turnover up to 9% compared to that in 2001, and a net profit before taxes up to 31%. The report pointed out that the share price was above the evolution of the CAC 40. It also detailed elements of a financial strategy designed to maximize the share value for 2002: “In the coming years, ASF will face new challenges: challenges related to the decline of our construction program, the emergence of new issues for our clients. To meet these challenges, the Group is setting up new growth drivers aimed, in compliance with its 2005 financial objectives, at gradually developing its business through diversification in related businesses and prudent international expansion by leveraging the expertise of its teams and creating value for its shareholders. The growth objectives for turnover, margin, etc. are in line with this”. The Group has also introduced compensation in the form of employee profitsharing, less based on seniority. He points out that “the new salary grid system will make it possible to reduce automatic promotions based on seniority in favor of a more individualized remuneration policy that values merit.” This includes the desire to empower employees so that the Group can achieve the objectives set by the Board of Directors and the shareholders. Rating agencies can also contribute to increased internal risk management by companies. For example, Cofiroute financed the A86 Duplex with its own funds. A former Cofiroute project manager34 clarifies the role of rating agencies, whose rating can then guide potential

investors: “I would say that there is a major reason which is that Cofiroute was for a long time the only private company, and therefore for us it was a matter of life and death. If we were wrong, it would have been expensive because there would have been additional costs, but above all because time is money. So we had an obligation to achieve results. Everyone was watching it very carefully to make sure that the risks were under control. In addition, the bankers were keeping a close eye on us. We financed the Duplex with 2.2 billion euros in corporate financing. The European Investment Bank and Standard and Poor’s at the time rated us. It had to be explained to them every year how to control the risks. […] They have very specialized economists who carry out analyses on all projects between the declarative and the realization of the company. They are able to say that on this project, this company had declared revenues equal to this, and it turned out that the revenue only reached 70% of the forecast […]. How did we convince Standard and Poor’s and others? We said: we don’t dispute your statistics because they don’t come out often. They took them out anyway. They saw that we were hanging in there. We simply told them that they had known us for ten years: you came in such and such a year, you were told that this project would be delivered on such a date, for such a large amount of money with such traffic. How much is it? What is our revealed policy and not the declaratory policy? Basically, since it was in our interest not to disappoint the shareholder and the banker (investor), we were cautious in our forecasts and this could be seen ex post. You have the right to apply the average French weightings to us because you see that out of five or six projects that went into service in the 1990s, we were in the dark. We say what we’re going to do, we do what we say. […] They wonder if Cofiroute will ever survive the shock, but that’s where the policy developed over the past 40 years is useful. They realize that the turnover and the result are maintained; after a while they say to themselves: they are in control of the situation”35. 3.4.1.5. The more widespread use of public–private partnership contracts since 2004 has strengthened the role of banks and their risk management practices in the management of major infrastructure projects Public–private partnership (PPP) contracts were introduced in France by Order No. 2004-559 of June 17, 2004. They enable the State or a public institution dependent on it to entrust a third party, for a period determined according to the depreciation period of the investments or the financing methods adopted, with a global mission consisting in financing of works or equipment necessary for the public service; the construction or transformation of the works; the support, maintenance, operation, and management; and other services contributing to the public service mission (e.g. traffic regulation). We are particularly interested in large infrastructure projects (transport, sports, cultural, etc.) with a high cost (100 billion euros or more).

These PPPs can take the form of a concession contract (the private partner pays itself with toll revenue) or the form of a partnership contract (the private partner receives rent from the public authorities). The concession is long-standing in France; it was used in particular for the construction of the first railway lines and then for the construction of the highway network. The law of April 18, 1955 on the status of highways allowed the State to grant the construction and operation of highways to semi-public companies and then to private companies in 1970, only one of which, Cofiroute, was still viable after the 1973 crisis. More recently, pursuant to Order No. 2004-559 of June 17, 2004, partnership or concession contracts, especially concerning high-speed lines and highways included in several master plans published in the 1990s, have been signed with the Eiffage, Vinci, and Bouygues groups. These include the South Europe Atlantic HSL, Brittany–Pays de la Loire, Perpignan– Figueras HSLs, and the A65 Langon–Pau highway. The notion of risk is at the heart of the concession contract and the partnership contract. PPP contracts allow risk sharing that is different from that of public funding. In the latter case, known as public contracting, SNCF Réseau (or any other public authority) signs separate short-term contracts with different private partners for design, construction, and maintenance and manages these contracts. Grantors (SNCF Réseau, local authorities) retain most of the risks. PPP contracts may be signed in the form of a concession contract or a partnership contract. The concession contract provides that the concessionaire generally assumes the design, construction, maintenance, and servicing of the infrastructure, as well as the risks, including traffic and commercial risks. It is remunerated by the toll revenue paid by railway operators or users and according to compliance with performance and quality criteria (regularity and availability). The partnership contract provides that SNCF Réseau, or a public authority, receives tolls from rail operators or highway users and pays the contract holder a financial contribution calculated according to its performance (time, cost, and quality of service). The private partner is responsible for the design, construction, maintenance, and servicing of the infrastructure. It only assumes construction risks, but not traffic and commercial revenue risks. Table 3.4 shows these differences in risk allocation and clauses between a concession contract and a partnership contract for high-speed lines and highways.

Table 3.4. Risk allocation and bonus clauses, penalties, remuneration and missions of a partnership contract and a concession contract Partnership contract Remuneration of the Rent paid by the grantor (the private partner latter collects the tolls for the use of the infrastructure) Contracts The private partner is responsible for the design, construction, maintenance, and servicing of the infrastructure

Risks assumed by the public authority Risks assumed by the private partner Penalties (delay, noncompliance with contract clauses, or perfomance criteria) Bonus

Traffic risk Commercial risk Risk of force majeure Other risks linked to the construction Yes

Yes

Concession contract Collection of infrastructureuse tolls by the concessionaire The concessionaire is responsible for the design, construction, maintenance, upkeep, and maintenance of the infrastructure (and the allocation of traffic paths to rail operators in return for the payment of a toll for high-speed lines) Risk of force majeure Traffic risk Commercial risk Other risks linked to the construction Yes

Yes

The distribution of risks between partners varies according to each contract. The content of these contracts, negotiated between the various partners and their lawyers, is confidential, however we were able to access a general risk distribution matrix between SNCF Réseau and its partners36. This distribution is done globally as follows, depending on the partner’s areas of competence and responsibility. The private partner generally assumes the risks that may arise after the signature of the concession contract, after the DUP. These risks may relate to project design37, project management, obtaining administrative authorizations38, land acquisition39, soil risk40, construction41, operation or maintenance42, service quality and availability43, traffic risk and commercial risk44, and infrastructure renewal45. SNCF Réseau alone assumes the risk of contractual litigation. This scenario applied to the partnership contract can be explained with the following example envisaged by the Mission d’appui à la réalisation des contrats de partenariat public privé (MAPPP)46 in the documents supporting the elaboration of a partnership contract made available to public entities. The project company borrows from a bank to finance part of the project. The financial costs related to this loan can be calculated from a fixed or variable rate. The grantor

has an interest in determining the amount of rent it pays to the project company before the contract is signed and indexing it to a fixed rate of indebtedness of the project company, ensuring in advance the amount of rent it will have to pay. The government, therefore, requires the private partner to subscribe to interestrate swaps with banks. The company pays these banks the fixed rate of credit against the variable rate of credit, which cancels the risk of changes in the rates included in the rent paid by the public entity, including during the period of possible recourse against the contract. If an action against the contract leads to its cancellation, the risk hedging instruments are canceled. In this case, the public entity must bear the possible cost of “dissolving swaps” with the swap banks (source MAPPP, sheet no. 12/16, pp. 2–3)47. The other risk categories are shared between SNCF Réseau and the private partner. The risk of unforeseen change48 is generally shared equally between the two partners, the risk of force majeure49 can be slightly more covered by SNCF Réseau than by the private partner, and the risks of regulatory change50 and technical change51 are slightly more covered by the private partner. The European Community has been legislating since 1993 on the competitive tendering of public work’s contract providers. Directive 93/37/EEC of June 14, 1993 specified that the increasing use of concessions in Europe required the inclusion of advertising rules in a context of Europe-wide competition. The latter was intended to reduce the costs of private partners carrying out urban planning projects and public expenditure. The advertising was intended to “enable entrepreneurs in the Member States to express their interest in contracts by soliciting an invitation to tender from project owners under the required conditions.” The search for cost reduction led to the identification of risks likely to cause delays and additional costs during the project management process. The identification, analysis, and treatment of risks are important for the private partner because concession contracts and partnership contracts are accompanied by the payment of penalties to the grantor by the private partner provider in the event of a breach of contract. For example, a concessionaire will have to pay a penalty to the public entity granting the concession if it delivers the work beyond the contractual date. This penalty amounted to 800,000 euros per day of delay in commissioning for the South Europe Atlantic HSL project granted to Vinci. It is in the concessionaire’s interest to avoid this situation, which is synonymous, for them, with a delay in payment calculated on the basis of the level of traffic observed after commissioning. A partnership contract holder is remunerated by the rent paid by the public entity. It is subject to the achievement of performance objectives. Penalties are determined in the contract. The MAPPP standard partnership contract clause52 indicates several possible sources of penalties for the private partner: non-compliance with insurance obligations, delay in carrying out modifications, delay in relation to the contractual date of completion of the work, delay in lifting minor reservations, and failure to meet performance commitments once

the work has been commissioned. A company holding a concession or partnership contract may finance the project from its own funds (corporate financing), as was the case for the A86 Duplex (Cofiroute), or by borrowing from banks. The participation of local authorities and the State may be added. Banks are already participating in financing major transport projects by the Caisse nationale des autoroutes or by loans taken out by the State, SNCF, or RFF. They are benefited from the State guarantee for the funds thus lent. PPP contracts imply that banks now lend funds to private companies that no longer offer this guarantee, in the hope that they will be repaid with interest on the due dates. The negotiation of the concessionaire or the holder of the partnership contract with the banks begins before the financing agreement is signed. A schedule of events to be justified each month and the amount of the loans are the subject of this negotiation. It is up to the designer– builder group to carefully argue the sums requested, which can amount to hundreds of millions or even billions of euros. According to one of our interlocutors, the risk analysis plays an important role here53. Banks, therefore, exercise control over private companies and designer–builder groups to verify whether the phases of planning for the completion of the work – completion of the deck, earthworks, etc. – are in line with the timetable of the financing agreement, and whether the commissioning that generates the revenue – toll, royalties, or rent – and the start of the return on investment – will take place on the planned date. This control allows the bank to release the loan money necessary to advance the work upon completion of each contractual step. A project manager of the Eiffage group says that trust between the concessionaire and the bankers is important and that it requires a risk analysis by the manufacturer design group: “Bankers must be given confidence […] they must have the impression that they are perfectly aware of what is happening in real time. Their fear is that there will be an unexpected new event. So they’re still very, very interested. As they were on Perpignan– Figueres by our risk analysis”54. This risk analysis remains internal to the designer–builder group and the concessionaire/holder of partnership contract. Banks may request access to information, for example, twice a year, but will not necessarily go into the details of these studies. It is particularly important to them that they exist because they provide a guarantee of follow-up. Risk analysis may, together with other monitoring tools, lead to reviews of project progress between the managers of the concessionaire or holder of the partnership contract and the designer–builder group to consider changes to the project and its planning that may absorb unforeseen and unwanted events that may otherwise occur. For example, it is possible to decide to involve an earthmoving team at a different location on the site than the one initially planned to make up for a delay caused by a geological problem. This monitoring is important for the concessionaire, or holder of the partnership contract, and the designer–builder group,

which wants to respect the work progress schedule so as not to be doubly penalized. On the one hand, in the event of non-compliance with this schedule, banks may suspend or reduce the payment of capital. The interest of the designer–builder group is to have cash at hand to be able to react quickly and adapt the project, project management, or planning according to the hazards encountered. One project manager indicated that it is possible to have the bank validate a greater number of key events than the bank’s maximum payment curve, “which allows one entity that is late in comparison to another to be certified more. Overall we always have 100% of the maximum payment when normally we should be below it because there is always something wrong somewhere”55. Risk analysis and project monitoring tools make it possible to anticipate hazards and their treatment. The financing agreement predicts, for the amount of interest, that the private partner must repay each month, regardless of the conditions (good or bad) under which the project is carried out. If the partner does not receive the capital paid by the bank due to a delay in completion, they lose the amount of interest they have paid to it. Concessionaires and partnership contract holders do not wish to carry out the project’s financial support (too costly) and need cash flow that makes project management supple and flexible to adapt it to contingencies and ensure timely commissioning. On the other hand, a delay in commissioning leads to the payment of late penalties to the public party of the PPP contract, in addition to the loss of revenue or rent related to the operation. 3.4.1.6. The opening of development concessions to private companies in 2006 marked the beginning of a participation of private investors and risk management in development operations and JDZs 3.4.1.6.1. The possibility for local authorities to conclude a development concession contract with a public or private partner, as soon as advertising is available Usually, JDZ development operations (land purchase, studies, servicing, etc.) were carried out by SEMs, where elected officials were represented. The National Commitment to Housing Act (ENL) No. 2006-872 of July 13, 2006 specified that the development concession could be awarded after a competitive bidding and advertising procedure with a public or private partner so as to allow them equal access to these invitations to tender. Private developers (Bouygues, Vinci, Eiffage, or family companies) have been positioned on this development market since 2006, which may have been more or less well-received by elected officials and SEMs, the latter fearing that these new developers will sell the best land to their own developers56. Major groups interested in carrying out development operations or JDZs are held, in

particular, by investment funds and individual investors (Table 3.5). These are the same as those who hold infrastructure partnership contracts. Similarly, investment funds seek to minimize risk to ensure a good return on investment for their shareholders. These private groups also finance local projects through loans. The bank’s policy is to ensure that the schedule for the implementation of the JDZ is valued in order to pay them the loan amounts necessary for the project. The identification and treatment of risks are also central to meeting the schedule and being able to receive the loan capital. Table 3.5. Shareholding of major construction groups holding development concessions with risk transfer in 2018 Investment Employees Individual funds shareholders Vinci July 30, 201857 72.7% Eiffage December 10.1% 58 31, 2017 Bouygues December 12.29% 28, 201859

Treasury Other stock

9.2% 19.6%

7.5% 68.4%

6.8% 1.9%

3.8% 0%

5.91%

60.8%

0%

21% (Bouygues family)

3.4.1.6.2. French law has been slow to apply European publicity and transparency obligations clearly Two instances of the case law which have remained famous for the lack of publicity on development agreements and development contracts have forced the legislator to specify this point in French law. The first is the SOGEDIS judgment handed down by the Bordeaux Administrative Court of Appeal in the dispute between SOGEDIS and the Reunion Island municipality of Cilaos, which stated that: “the public development agreement concluded without any prior formality of publicity and competition is void and does not confer any contractual rights.” This case also prompted the European Commission to initiate infringement proceedings against France, which have finally been closed. The second case law concerned the city of Roanne, which had awarded a neighborhood development contract to a local SEM without advertising, without a call for tenders, and without respecting the threshold of the amount of the transaction determining, under Directive 93/37/EEC, the use of competitive tendering. These disputes prompted the legislator to bring French law into line with European law by adopting Act No 2005-809 of July 20, 2005, on development concessions, and then Decree No 2006-959 of July 31, 2006, organizing the procedure for the award of these contracts. The implementing decrees were published 3 years later. The obligation to legislate on development concession contracts has helped to put risk at the heart of practices.

3.4.1.6.3. Development concessions were opened to the transfer of economic risk in 2009, but without defining it Decree No. 2009-889 of July 22, 2009, on development concessions, created three types of development concession procedures: two procedures with an amount above the European threshold of 5,150,000 euros excluding VAT, and a third procedure for projects with a lower amount. We leave aside this last procedure, which does not involve the notion of risk. The first procedure approached the works concessions provided for in Title III of Directive 2004/18/EC of March 31, 2004, which stated that the concessionaire assumed “a significant part of the risk of the operation.” Advertising and a notice of award were planned. The public licensor could manage the procedure in its own way. The second procedure assimilated development concessions to public contracts for community works. A functional program had to be drawn up within the meaning of Ordinance No. 2004-559 of July 17, 2004, on partnership contracts. The aim here was to determine the most advantageous offer for the public licensor, including competitive dialog, tendering, or negotiated procedures. But unlike the previous procedure, “the concessionaire did not assume a significant part of the economic risk of the operation.” We can note that Decree No. 2009-889 of July 22, 2009, on development concessions, was not clear in the definition of the significant part of the economic risk assumed or not by the public grantor, nor on the types of risks concerned. It was, therefore, up to the public grantors to identify the transferable or nontransferable risks and to measure the economic risk of the operation acceptable to it without the texts providing an appropriate methodology. 3.4.1.6.4. The 2016 texts clarified the notion of risk in development concessions Ordinance No. 2016-65 of January 29, 2016 and Decree No. 2016-86 of February 1, 2016, on concession contracts, transposed European Directives 2014/24/EU and 2014/25/EU on public procurement. These texts clarified the notion of risk and what is meant by a significant part of risk: “The part of risk transferred implies a real exposure to market risks, so that any potential loss incurred by the concessionaire is not purely nominal or negligible. The concessionaire assumes the operational risk when, under normal operating conditions, it is not certain that they will amortize the investments or costs they have incurred in connection with the operation of the facility or service.” Second, the texts have also established a normative framework for concession contracts, as the rules had so far been quite scattered, and have brought the award of these contracts closer to that of public contracts. If the public grantor chooses to transfer the economic risk associated with the development operation to the concessionaire, two procedures are now possible. – The first procedure is formalized and applied to concession contracts whose estimated

value is equal to or greater than €5,225,000 excluding tax (Article 9 of the decree). It also requires the publication of a concession notice at European and national levels. – The second procedure is simplified and applied to concession contracts with an estimated value of less than €5,225,000 excluding VAT or to concession contracts relating to activities in the water and sanitation sectors, the operation of passenger transport services, or certain social services, regardless of the value of these contracts. It requires the publication of a concession notice in a journal of legal notices. The licensing authority may limit the number of candidates eligible to submit a bid, using environmental, social, or innovation-related criteria. Quality of service is a mandatory criterion. A negotiation makes it possible to choose the concessionaire. Monitoring is mandatory through the production of an annual information report by the concessionaire. 3.4.1.6.5. The more common use of the development concession with risk transfer has increased the practice of risk management in development and JDZ projects The Engagement national pour le logement Act (ENL)60, No. 2006-872 of July 13, 2006 and Decree No. 2009-889 of July 22, 2009, on development concessions, required local authorities to carry out a risk analysis before deciding whether to carry out a project on a direct labor or concession basis with or without transferring a significant proportion of risk. This does not mean that risk analysis did not previously exist, since Société publique locale (SPL)61 had to present a balanced operating balance sheet. But these analyses could be more or less detailed and not necessarily formalized in the form of referentials and analysis grids. The need to determine the “significant portion of the risk” transferred to the developer, as defined by Ordinance No. 2016-65 of January 29, 2016, on concession contracts, and Decree No. 2016-86 of February 1, 2016, on concession contracts, has also required local authorities to adopt in-depth risk analysis practices. The choice to carry out a development operation or a JDZ under a direct labor or under a development concession is made on the basis of preliminary studies and an analysis grid of the hazards that the project could encounter. The importance of preliminary studies62 should be stressed, as they provide precise elements for identifying and assessing risks. For example, geotechnical risks can be finely analyzed if the collection of geological, hydrogeological, and hydrological data could be carried out using the flood risk prevention plan, a soil survey, drilling and catchment survey, and if a geological survey could be conducted (stratigraphy, constructability analysis, and groundwater level). A detailed study of the environment (topography, landscape, vegetation, and biodiversity inventory) makes it possible to prepare the impact study and to identify, for example, environmental issues likely to lead to a challenge by associations. Market research is fundamental to assess the commercial risk that is transferred to the developer. In particular, it enables the local authority to identify the market (analysis of housing needs, businesses, business premises, and public facilities; analysis of the current situation, analysis of

competing supply, its characteristics, and prices) and to position the development or JDZ project in a market segment (types of real estate products, program and lot sizes, building frames, number of levels, etc.). The estimated revenues of the project also need to be evaluated in detail with the estimation of a range of selling prices for practicable housing, offices, or shops and the financial resources of the targeted buyers. Different types of hazards can be studied based on the data collected during the preliminary studies (Ministry of Ecology, Sustainable Development, Transport and Housing 2016): – hazards related to land and soil (particularly the geotechnical context); – hazards related to regulations and procedures; – hazards related to studies and works; – risks related to marketing; – risks related to financing. Other hazards may be added depending on the project. Each hazard is quantified to assess the corresponding level of risk and its financial impact on the project. An assessment accompanies these studies. It evaluates the estimated result of the development project or JDZ, using revenue and expenditure assumptions. This assessment also makes it possible to evaluate the investments to be made in terms of environmental protection or equipment (e.g. possible tax optimizations). Balanced reporting is a practice that predates the 2009 and 2016 risk texts. As indicated by an operations manager of the SPL d’aménagement Territoires Publics, the concessionaire of JDZs located in Rennes: “The risk that is taken in the development concession in the past was the local authority. If we ended up with a transaction bonus, we took the entire transaction, and if we had a minus on the transaction, they (the community) paid the bill. But overall, we have always had the same approach as planners anyway. It was to anticipate as well as possible and as accurately as possible the operation balance sheet so that we would not have this kind of disappointment at the end of the operation. […] So we have not changed our way of doing things because of this, because of the transfer of risk to the developer”63. All these assessments allow the local authority to determine its possible financial participation in the project, whether or not it can grant the project based on the identified risks and whether or not the risks are transferable. The allocation of these risks is then negotiated between the parties. Each contract is, therefore, different. As one manager of the SPL d’aménagement Territoires publics points out: “But these are still points that are negotiated when the contract is finalized; it is like the developer’s remuneration”64. Risks are considered more easily transferable if they are well identified and quantified.

Tables 3.6–3.10 show an example of risk allocation for a standard development project. This contractual risk-sharing grid has been quite common in contracts since 2009. In general, each party assumes the risks related to its area of competence. However, depending on the contracts, the distribution of risks between the local authority and the concessionaire may change (in particular, in the case of archeological risk and clean-up risk) and the risks subject to negotiation in the example below may also be attributed to one or other of the parties. Table 3.6. Risk allocation in the case of development concession contracts: risks on land. Source: analysis of concession contracts, interview with ESPELIA Risks on land

Risks assumed by Risks assumed by the developer the local authority Initial under-estimation of price X of land Acquisition of more than XX X 2 euros/m of land Costs for reducing pollution X Relocation costs and X compensation for existing activities Costs linked to archeological X risks

Risks to be negotiated

Table 3.7. Risk allocation in the case of development concession contracts: program risks. Source: analysis of concession contracts, interview with ESPELIA Program risks

Risks Risks assumed Risks to assumed by by the local be the authority negotiated developer

Exceeding the costs of works before additional studies due to under-estimation of program by the local authority Modification of the program following regulatory change (PLU, new risk) Modification of program following local authority request Modification of program following a change in economic situation Increased marketing delays due to delays in X construction work or procedures Delays due to cancellation of independent procedures from the concessionaire

X

X X X

X

Table 3.8. Risk allocation in the case of development concession contracts: risks related to studies and works. Source: analysis of concession contracts, interview with ESPELIA Risks linked to studies and works

Exceeding costs after studies due to additional ones or equipment program by the local authority Exceeding work costs following additional studies due to failures or contractor/company disputes Exceeding work costs following additional studies because of standards in place Exceeding costs following additional studies because of concessionaire failures during carrying out defined tasks in the concession contract Delay in construction due to public authority’s work programs New subjection from the public authority

Risks assumed by the developer

Risks Risks to assumed by be the local negotiated authority X

X

X X

X X

Table 3.9. Risk allocation in the case of development concession contracts: procedural risks. Source: analysis of concession contracts, interview with ESPELIA Risks linked to procedures

Risks assumed Risks assumed by the by the local developer authority Costs and delays due to procedural errors X before developer intervention Costs and delays linked to procedural X errors due to the division of land by the developer Costs and delays linked to contentious X issues (urban authorization, markets).

Risks to be negotiated

Table 3.10. Risk allocation in the case of development concession contracts: risks related to financial costs. Source: analysis of concession contracts, interview with ESPELIA Risks linked to financial costs Risks assumed by Risks assumed by the Risks to be the developer local authority negotiated Change in financing costs X Poor understanding of cash X flow by the developer Delayed payment of public X holdings (if provided) The public authority can transfer risks through the contract and grant public contributions that allow the concessionaire to carry out the project under “normal” economic conditions. For example, these interests may, depending on the case, compensate for a high land acquisition price compared to the sale price after development, a clean-up cost or a framework for land prices for sale at the request of the local authority to correspond to a customer segment. Public financial participation does not cancel the risk taken by the concessionaire if the latter is exposed to a drop in its revenues in the event of a drop in its results. A concession contract with risk transfer that would provide for a balanced public contribution in the event of insufficient commercial revenues compared to the forecast balance sheet or an automatic repurchase of unsold land at the balance sheet value can hardly be considered as a contract transferring a “significant part of the risk” to the developer as provided for in the texts (Ministry of Ecology, Sustainable Development, Transport and Housing 2016). As in the case of PPP contracts, the development concession contract makes it possible to treat risks with “hazard budgets” included in the forecast balance sheet drawn up at the end of the preliminary studies. An operations manager of the SPL d’aménagement Territoires publics explains: “I would say that our job is also to manage these risks and hazards. So, when we develop a development operation, we have an operation report that we do from the beginning and that follows us throughout the life of the operation. It is reported to the public authority annually. We have hazard budgets. There are major hazards (often related to land acquisition). There may be risks because there are blocking land points. There may be preventive archaeology. In urban renewal, however, this is less the case. So we have budgets related to that. And as we go through the risks… Sometimes there are risks of commercialization. Things are not selling at the expected rate, even though a lot of money has been spent on public spaces. All this is integrated into hazard budgets from the start of the operation. So it is also part of our mission to be able to manage these risks”65.

3.4.2. The environmental assessment procedure is becoming more demanding and can be a source of risk for public and private project owners A twofold evolution can be observed during the 2000s. Environmental assessment has gradually taken into account certain risks (related to land, natural, and forest development) and has become more demanding. The procedures for applying compensatory measures have also become more restrictive for public and private project owners. Indeed, an insufficient assessment of the impacts of a project and appropriate compensatory measures can lead to a delay (and possibly an additional cost) for the project. 3.4.2.1. The State’s commitments have gradually taken into account the major risks The State’s commitment files have gradually taken into account the major risks, as shown by the consultation of the A65 Langon–Pau highway commitment file carried out in 2006. It indicates that the concessionaire had to take into account the departmental files of the major risks of the three departments crossed by the highway (risk of forest fires, flooding, ground movements, earthquakes, dam failures, discovery of ammunition or explosives from the recent conflicts). The concessionaire had to set up an intervention and safety plan validated by the competent authorities (Direction régionale de l’équipement Aquitaine 2006). These commitments have been included in the concession contract. 3.4.2.2. The impact study integrated the risks related to land, natural, and forest development from 2011 onward Act No. 2009-967 of August 3, 2009, on the implementation of the Grenelle de l’environnement, and Act No. 2010-788 of July 12, 2010, on a national commitment to the environment, have led to an evolution of the administrative doctrine on impact assessment. Since Decree No. 2011-2019 of December 29, 2011, on the reform of impact studies on works, structures, or development projects, impact studies are carried out by the public authority or a public institution and are part of a more global set of studies that make it possible to analyze the project as a whole. It is mandatory for public authorities to indicate the compensatory measures to be implemented in project authorizations and to indicate the follow-up to be carried out. The creation of a control administration by this decree should enable the concessionaire to ensure that the project owner will apply measures to avoid, reduce, and/or compensate for impacts. The project owner is now subject to an obligation of result and not only of means. This text introduced, for the first time, the term risk related to natural environment development practices of the project owner. Risk analysis was considered for nuclear installations and transport infrastructure for which the impact study must include “an analysis of the ecological issues and potential risks related to the land, natural or forest development induced by the project, depending on the scale of the foreseeable work and the sensitivity of the environments concerned” (Article 122-5). The requirements for more in-depth impact

studies have been consecutively higher for project owners. Assurance to the public that the impacts of the project that they consider negative can be addressed and that they are followed up is part of the negotiation of project characteristics and can be used to limit the risk of controversy or conflict. However, it is difficult for the impact assessment to reach relevant conclusions on the environmental effect of a linear project during the public debate on the opportunity, as the corridor of a transport infrastructure project (e.g. 1,000 m band) is not precisely known. Avoidance, reduction, and compensation measures are often determined after the DUP, with more detailed studies. The project owner no longer necessarily has any optimization options at his disposal to avoid or reduce the impact and can, therefore, sometimes compensate it with surface measures. 3.4.2.3. Offsetting the project’s environmental impacts can lead to risks of delay and over-cost if it is underestimated Act No. 76-629 of July 10, 1976, on nature protection, provided that project owners who could not avoid or reduce the environmental impacts of an infrastructure or development should introduce compensatory measures. The notion of compensatory measures was taken over by Act No. 2006-1772 of December 30, 2006, on water and aquatic environments. It indicates that the Installations Ouvrages Travaux Activités (IOTA)66 that have an impact on wetlands (dewatering, watering, waterproofing, and filling in wetlands67 according to the environmental code) are subject to prefectoral authorization. The project owner must prepare a project impact study file68 (which is close to the impact study) in which it assesses the project’s impacts on wetlands and the measures necessary to reduce, avoid, or compensate them. This file is of particular importance to the project owner because the failure to obtain administrative authorization from the environmental authority requires it to redo a file and delays completion of the project. In addition, the regulations concerning compensation have been strengthened in the Water Act by requiring projects to be compatible with the schéma directeur d’aménagement et de gestion des eaux (SDAGE)69 and the green and blue70 frames of the schémas régionaux de coherence écologique (SRCE)71. The application of the countervailing measures procedure remained limited during the years 1970–2000. The environmental authority has noted that project owners are often confused between reduction or support measures and compensatory measures. In addition, the compensatory measures were only implemented by the project owner for three main reasons: the request for a derogation for the destruction of protected species, the application of the procedures of the Water Act (supervised since 2006), and land clearing (Vanpeene-Bruhier et al. 2013). This has prompted government departments and national environmental protection associations to consider making biodiversity offsets mandatory and extending them to ecological continuities.

Act No. 2009-967 of August 3, 2009, on the implementation of the Grenelle de l’environnement, and Act No. 2010-788 of July 12, 2010, on a national commitment to the environment, have changed the regulations by extending their scope, strengthening the conditions of authorization and control. Project owners have had to implement actions or measures that generate ecological benefits at least equal to the unavoidable or unreduced ecological loss. The scope of the compensatory measures has been extended to ecological continuities (feeding, resting, and breeding sites of species). The administrative authorization decision was based on the mandatory description of the measures envisaged and the monitoring arrangements. In the event that compensatory measures are not implemented, the administrative authority may issue a formal notice to a project owner or have the State carry out the measures. An impact assessment policy has also been created. At present, the quality of impact studies and the accuracy of compensatory measures are a major issue in the decision-making process for public and private project owners. Project owners attach great importance to the quality of impact studies, the detail of the species census, and ecological continuity. The regulations have strengthened the quality requirements of the impact assessment. The greater involvement of private project owners in projects since 2004 has also required them to have a more detailed understanding of environmental assessment. This is not the core business of public work companies. 3.4.2.4. The treatment of risk to the natural and built environment is reinforced in urban planning law by the process of heritage development Act No. 2016-1087 of August 8, 2016, on the recovery of biodiversity, nature, and landscapes, has changed the urban planning law. By Articles L 113-29 and 30 of the urban planning code, the protection of natural spaces has been reinforced by the possibility of classifying elements of green and blue frames useful for the protection of ecological continuities into areas of ecological continuities. Ecological continuity “allows individuals of a plant or animal species to move through landscapes between favorable habitats. It is therefore a functional space that can correspond to a landscape element such as a hedge or a grass verge. It can also be a continuity of grasslands or a mosaic of cultivations offering diversified resources” (CAUE Dordogne, INRA, Conseil général de Dordogne, LETG Rennes, undated document). These areas of ecological continuity can be defined in the long term by classifying them as agricultural areas (Article R151-22 and 23 of the urban planning code) or by creating specific planning and programming guidelines. Article R. 151-7 of the urban planning code specifies that the orientations d’aménagement et de programmation (OAP)72 may “include provisions for the conservation, enhancement, or requalification of landscape elements, neighborhoods, blocks, buildings, public spaces, monuments, sites, and sectors that they have identified and located for cultural, historical, architectural, or ecological reasons, particularly in urban areas regulated pursuant to Article R. 151-19”. This approach makes it possible to guarantee communities the protection of their natural and built heritage over the long term. It is based on a process of patrimonialization. The texts also

speak of an OAP with a heritage vocation. It is based on inventories of natural species or buildings to protect and on the definition of a protection and enhancement perimeter. This is a preventive measure designed to avoid hazards (urbanization, destruction of species, alteration of historic buildings or archeological sites, etc.) that could alter the heritage value of these areas.

3.4.3. A decision-making process driven by texts that seek to limit social and political risks 3.4.3.1. Strengthening consultation between government departments for rail and road projects Circular No. 91-61 of August 2, 1991 was replaced by Circular no. 2000-98 of December 28, 2000, on the modalities for the preparation of major rail infrastructure projects. This text specified the integrated process of studies and consultation of rail projects that the State had begun to develop in Circular No. 91-61. The text did not directly address the concepts of risk and social, political, and financial uncertainties. It stated that “the study and consultation processes set out below should make it possible to combine the in-depth study of projects in their various components and the organization of consultations at the various stages of progress, in order to achieve a successful outcome, taking into account the data and technical issues, socio-economic, financial, environmental, and spatial planning, to the definition of a project, accompanied by a financing plan, taking the utmost account of the opinions expressed while taking into account the specific interest of the proposed development in the organization and development of transport” (Chapter 1). Consultations were planned with local and national government departments to involve them in the studies as soon as the preliminary debate was completed. The objective of this consultation was for the State to reconcile equipment needs with “environmental imperatives”. The term “imperative” is consistent with the requirement for more in-depth impact assessments detailed above. It is interesting to note the first reason given in the text for this consultation: “in order to avoid challenges in subsequent phases, in particular during mixed training at the central level”. For example, the Mediterranean HSL project presented by SNCF had been strongly criticized by the Ministry of the Environment for crossing vineyards, urbanized sectors, and flood areas (Zembri-Mary and Campagnac 2014). This new inter-service consultation was intended to enable the public project owner to talk about a single approach and to give greater legitimacy to the project. Two other issues, this time territorial, accompanied this consultation with local government services. On the one hand, it was intended to enable RFF to prepare the route options that would then be presented to elected officials, the socio-economic community, and associations by integrating local issues (environmental, agricultural, and service). This was a way of making a project more acceptable to the local community. For example, local elected officials

could be in contact with the prefect and the State’s technical services to express particular expectations. On the other hand, the consultation was intended to inform local stakeholders about the main characteristics of the project (objectives, technical characteristics, economic, financial and environmental issues of the variants, and possible phasing) and the progress of the decisionmaking process in order to “avoid misunderstandings about the essential data of the project.” The possibility of an uncertain acceptability of the project has, therefore, been raised in the text. The procedure was designed to inform local stakeholders and gather their opinions during various phases of the studies and limit the risk of controversy even if the term risk was not used. RFF, which is directly affected by this circular, set up a context analysis and ongoing consultation with the local authority and the public during the 2000s with the East HSL project. These two practices seem to have gone further than this circular because they are continuous from one study phase to the next and involve the public. The latter was not mentioned in Circular no. 2000-98 of December 28, 2000, on the modalities for the preparation of major rail infrastructure projects. Finally, the same circular specified that the consultation of elected officials should lead to an agreement of local elected officials on “the financing plan before the launch of the public utility inquiry.” The text did not use the term risk or uncertainty. Nevertheless, we can interpret it in this way. Indeed, the interviews conducted at RFF73 show that a secure and sustainable financial agreement between local authorities is a key element for the stability and speed of the decision-making process. RFF has incorporated this risk into the financial risk analysis it carries out and updates during this process. In conclusion, risks were not mentioned, but the circular implemented or reinforced practices that allowed the public project owner to anticipate these social, political, and financial uncertainties as much as possible. Risk control within government departments has also become essential in the decisionmaking process for road projects. It was set out in the circular of November 22, 2004, on consultation between the environmental services and the equipment services for the preparation and appraisal of road projects on the national network. The purpose of this text was to “avoid national and community disputes”, a subject already detailed in Circular no. 2000-98 of December 28, 2000, on railway projects. It was the first to aim “to ensure the legal security of projects and the control of costs and deadlines” by basing the avoidance, reduction, or control of these risks on consultation. Very concrete means were envisaged for this during the decision-making process, such as: – planning as soon as possible for solutions compatible with environmental protection to avoid “challenging the project at a more advanced stage,” i.e. a social risk; – taking the “water” component of the APS studies further by concerted action between departments to reduce the risk of flooding and reduce the risk that the studies and subsequent appraisal of the project under the Water Act will lead the project owner to

make major changes that could undermine the financial balance of the project; – in the impact assessment, taking into account the vulnerability of the project to the risks of flood, avalanche, or forest fire in the project design and the vulnerability of territories to the risks induced by the project (floods and landslides). Consultation with other services was essential for this purpose. 3.4.3.2. Since the 2000s, the public authorities have sought to broaden the use of consultation in urban planning law and, paradoxically, have limited the right of appeal Consultation was considered by the public authorities as a means of limiting the social risk of urban planning projects. An article published by Le Figaro Particulier in 200174 pointed out that “elected officials and administrations are beginning to understand that good prior consultation ultimately takes less time than ex post litigation. It now happens that debate over a project is enough to convince the project owner to abandon it, as for the Boutre-Carros high-voltage line, wanted by EDF, or the A32 highway”. In other words, consultation and debate could be seen as a tool for defusing conflict and reducing social risk. One case that remained famous at the time was the Paris Rive Gauche JDZ. The preamble to the Charter, Charte de la concertation du Ministère de l’Environnement, was the only one to specify that “on all projects affecting urban planning… consultation had become necessary” (Helin 1997), but at the end of the 1990s, consultation was only organized in the case of the opening of all or part of a future urbanization zone, subject to a modification or revision of the land use plan. The Solidarity and Urban Renewal Act of December 13, 2000, n° 2000-1208, made consultation mandatory before the public inquiry for PLU and SCOT projects. The consultation was then extended to the design of technological risk prevention plans and foreseeable natural risk prevention plans. The public authorities have chosen not to precisely define the consultation process in order to make it more secure. There was no specific rule given by the legislator on the modalities of consultation when they existed for the public inquiry (Struillou 2004). These modalities indicated that the consultation should respect three objectives. The Municipal Council had to deliberate on the objectives of the development project and the modalities of consultation (at its free discretion). The consultation was to involve residents, associations, and the economic community throughout the duration of the project. The City Council was also to review and deliberate on the consultation. Consultation could be carried out in very different forms by local authorities, who could choose between extensive or very light consultation. This could be controversial. This lack of regulation made it possible to avoid rigidifying the approach and thus avoiding recourse against transactions declared to be in the public interest. The aim was to seek some legal certainty for JDZs and projects while avoiding social risks (Struillou 2004). The right to appeal based on irregularities found during the consultation was limited in the

1990s and early 2000s. The possibilities for opponents to appeal against land use on the basis of irregularities in consultation by way of exception have been restricted in the urban planning code. The purpose of this provision was “to avoid the multiplication of complex disputes by prohibiting the applicants from invoking the exception of illegality drawn from the irregularity of the consultation procedure, in support of conclusions directed against another act taken as a result of this procedure” (Article L 300-2 of the urban planning code; Struillou 2004). A period of 6 months has also been introduced to limit appeals to the illegality exception. “Exceptions of illegality, derived in particular from the irregularity of the consultation, an urban planning document or the act of creating a JDZ may not be invoked after a period of six months from the date on which the document in question takes effect” (Article L 600-1 of the urban planning code; Struillou 2004). This was to limit the risk of recourse. Act No. 2003-590 of July 2, 2003, on urban planning and housing, transcribed in Article L 300-2 of the urban planning code, also limited the possibilities of declaring the consultation illegal, although they had existed before. It specified that urban planning operations and urban planning documents submitted for consultation “are not illegal solely because of defects likely to taint the consultation, as long as the procedures defined by the deliberation organizing the consultation have been respected” (Struillou 2004). In other words, if the terms of the consultation that was the subject of a deliberation were respected by the public authority, they could not be declared illegal, even if they were minimal. This situation, without a clear framework for the modalities of the consultation, may have caused discontent among the inhabitants and associations affected by projects. This question of the modalities and practices of consultation between a search for consultation by the public authorities and a restricted right of recourse continued to be the subject of legal debates for about 10 years. Decree No. 2013-142 of February 14, 2013, adopted for the application of Ordinance No. 2012-11 of January 5, 2012, clarifying and simplifying procedures for preparing, amending, and revising urban planning documents, made it possible to submit private initiative development operations to consultation. The Conseil d’Etat also specified that consultation should take place before the project was finalized. The Conseil d’Etat also confirmed, following Request no. 338760 of October 8, 2012, that the effectiveness and sufficiency of the consultation procedures did not have to be verified and that only compliance with the procedures that had been the subject of a deliberation should be verified. The assurance of advanced consultation procedures for citizens was, therefore, not yet in place. The texts and case law have sought to give priority to the implementation of projects, particularly local projects, as planned. The possibilities of modifying a project after consultation were also discussed. These rules are currently in effect; the project may be modified if the changes affect neither the nature, the main options, nor the general economy of the project. Article L300-2 of the urban planning code does not indicate according to which criteria and

under which conditions a new consultation may be conducted in the event of the project’s evolution. Concerning public debate, Act No. 2002-276 of February 27, 2002, on local democracy, specified that “projects should not be excessively modified between the closure of the public debate and the opening of the public inquiry” (Lherminier 2014). This author indicates that the case law has granted few modifications to local urban planning and development projects subject to consultation (Article L300-2 of the urban planning code) compared to projects subject to public debate, which are more often of national interest and which are considered more progressive than a local project whose modifications can more easily call into question the objectives of the project. In other words, the rule sought to focus on the project and its legal certainty. This position has been confirmed by recent texts. By Order No. 2016-1060 of August 3, 201675, the legislator reformed public participation procedures at various stages preceding decisionmaking on operations likely to have an impact on the environment. The time limit for invoking illegality by way of exception for formal or procedural defects in decisions taken following public participation in the preparation of plans, programs, and projects affecting environmental law could no longer be invoked after a period of 4 months. This text, therefore, reduced the time limit by 2 months and further restricted the inhabitants’ possibilities of appeal. At the same time, the text has broadened the public debate approach by creating the possibility of using prior consultation linked to public debate for plans and programs. 3.4.3.3. A more flexible public inquiry procedure Decree No. 2011-2018 of December 29, 2011, reforming the public inquiry into operations likely to affect the environment, also introduced greater flexibility into the decision-making process. The text changed the practice of public inquiry by stating that public comments and proposals collected during the inquiry and an analysis of the proposals and counter-proposals produced during the inquiry should be included in the report of the investigating commissioners. These elements and the Commissioners’76 recommendations had to be taken into consideration. The public inquiry report could now include comments from the project owner in response to public comments. Another new fact was that the public inquiry could be suspended for 6 months in order to make substantial changes to the file under investigation. In the event of changes affecting the general scheme of the project, a further public inquiry into the advantages and disadvantages of these changes for the project and for the environment could be organized. This evolution of the investigation procedure has shown a new flexibility in the decisionmaking and planning process, and a plasticity of the project that can be modified according to the deliberative process. This new practice of public inquiry can be perceived by project owners as one of the last phases to understand local issues and optimize the project based on these observations. The project owner also has the opportunity for counter-argument by explaining the technical or financial reasons for refusing a request for modification or

adjustment of the project.

3.4.4. The socio-economic assessment process has integrated risks related to the technical and economic environment since 2005 3.4.4.1. A decrease in the discount rate of the economic calculation to take into account the risks related to each major project The discount rate for the economic calculation of major projects was set at 8% in the 1980s and 1990s. This high rate allowed administrative experts to integrate risk implicitly, but on a flat-rate and global basis. It was not possible to accurately assess different types of risks. This lack of knowledge of the real risks of a project could lead to investment in risky projects or not investing in low-risk projects. This practice was criticized as early as the 1980s because its flat-rate nature did not allow future events, which, by their nature, were sources of uncertainty, to be considered. The report of the 2003 Inspection Générale des Finances and Conseil Général des Ponts et Chaussées (IGF and CGPC 2003) estimated that the profitability of many projects, calculated with a discount rate of 8%, was insufficient, which led to their rejection. The Administration, therefore, questioned the validity of this flat-rate discount rate in the socio-economic analysis. The 2005 Lebègue report proposed a renewed interpretation of the meaning given to the discount rate (Quinet et al. 2013). It showed that the benefit of each project could vary according to the evolution of economic growth. He suggested: – that this rate be unique and applicable to all projects in all sectors of activity financed with public funds to avoid any difference in the way these funds are distributed; – that this rate be reduced to 4%, without including a provision for risk. For example, the risk had to be assessed directly for each project for material quantity or price forecasts; – the discount rate is used in calculations excluding inflation. In addition, the report recommended identifying the risks and hazards that could affect the life cycle of a project, describing their impacts and using probabilistic risk analyses. He highlighted the difficulty of establishing probabilities of risk consequences due to the unavailability of such data for large projects. 3.4.4.2. A political will to limit social uncertainty and limit the financial risk of projects through appropriate socio-economic analysis The framework instruction of March 25, 2004, on the economic evaluation methods for major transport infrastructure projects, updated on May 27, 2005 and signed by the Minister of Public Works, Gilles de Robien, made it possible to apply the recommendations of the Lebègue report to the decision-making process. It is necessary to recall the economic context of this text. The use of private financing (partnership contracts and concessions) for the construction and operation of major infrastructure projects has required the integration of the

profitability constraints of private actors. The introduction of competition between rail freight operators in 2003 made the distribution of traffic between lines dependent on the strategies and choices of multiple private operators, which are difficult to predict by experts. This raises the question of the relevance of traffic forecasts and potential revenues in relation to investments for certain lines (e.g. the Nîmes–Montpellier bypass or the Perpignan– Figueres HSL) and financial risk. This text has led to three changes in socio-economic assessment practices, as follows: – First, this text has innovated by further integrating the participatory nature of the decision-making process into socio-economic assessment. On the one hand, it established socio-economic assessment as “the best criterion for assessing the socioeconomic effectiveness” of a project. On the other hand, it considered the consultation as a tester of the social acceptability of the project and a revealer of impacts or qualitative elements that the socio-economic analysis “could not quantify” or that it quantified “insufficiently with regard to the social groups concerned”. The text incorporated the fact that the expert could take into account data from the consultation in the calculation and modify the latter accordingly (reference situation, search for compensation, and valuation of criteria not taken into account). The text also indicated that the expert could present criteria other than those included in the calculation to the political decision-maker in order to ensure that the decision is taken “in the best possible knowledge of the facts”. It should be noted that the project owner also reserves the right to refuse requests for technical reasons, cost, and so on. – Second, the instruction also asked the experts to submit a socio-economic assessment that facilitates communication with the public. We remain here in the mindset of misunderstandings with the public advocated by the public authorities since 1987. In particular, the appraisal had to include decomposed economic and environmental values (and not a single value) and presented by a category of previously identified economic and social agents. This was to allow each person to find their way into the project. In addition, the text also asked the experts to focus the assessments on projects that had already been optimized and “reducing environmental pollution to an acceptable level or compensating it according to the indications of the public debate.” The interest of this precaution seems to us to be twofold: on the one hand, it allows a project whose environmental impact has been studied to be exposed to the public, which may make it more acceptable. It also gives a more precise idea of the cost of the project, even though modifications for environmental reasons (and additional costs) cannot be ruled out afterward. The text asked the experts to ensure the presentation and popularization of the calculation results by explaining the cost of the optimized project, taking into account environmental effects, the impact on expected traffic, the calculation methods and assumptions used, and so on. – Third, the text provided for an assessment of the financial risk, taking into account the constraint of public finances and an analysis of the financial risk for the public and

private operators. The risks specific to each project had to be taken into account and determined according to the uncertainties concerning the investment and operating costs and the traffic envisaged, which determine revenues. The text did not specify the related methods since RFF and the private operators had already developed their expertise on this subject. The discount rate of 4% of the calculation should not take into account risks related to the project (risk of extra cost or traffic risk) or the constraint of public finances. 3.4.4.3. The use of multi-criteria analysis has been strengthened in the evaluation compared to cost-benefit analysis Cost-benefit analysis makes it possible to value the benefits and costs of social well-being associated with a project in order to define its social value. In a context of scarce resources, this calculation should, among other decision support tools, help the decision-maker to choose a project among other competing projects. In this case, the benefits must outweigh the costs. The analysis does not seek to maximize profit, but rather the collective surplus, which takes into account a collective preference. The main limitation of cost-benefit analysis is the difficulty in quantifying and giving a monetary value to phenomena such as the effects of pollution on health, human lives saved, and so on. This approach is considered not only rational but also a source of uncertainty because it presents a result to a non-expert audience in the form of a rate of return whose calculation method may seem unclear. The circular of December 9, 2008 of the Ministry of Ecology relating to the establishment of a quality charter for evaluation had two objectives. On the one hand, it recommended analyzing the risks associated with each impact studied by the multi-criteria analysis. This text formulated an evaluation of the projects and their variants based on a comparison of their social (employment, vulnerable groups, accessibility, social mix, etc.), environmental (climate, pollution, noise, etc.), and economic (impacts on households and businesses, cost, competitiveness, etc.) impacts. However, there is currently no standard method for assessing all these impacts, nor did the circular specify how to assess the risks. On the other hand, this text has given a more important role to multi-criteria analysis than to cost-benefit analysis in the a priori evaluation of projects. The multi-criteria analysis had several advantages in terms of increased consultation with the public and project partners since 1992, 1995, and 201077. The cost-benefit analysis gave only one figure for each variant of a project, while the multicriteria analysis made it possible to assess and compare multiple impacts for each variant. The multi-criteria analysis separated the performance of each criterion for each variant and could change a variant on one or more specific criteria if necessary. This method made it possible to include requests for modifications by certain actors in relation to the social, environmental, or economic performance of a variant in the evaluation.

3.4.4.4. Recent methodological recommendations for implementing financial risk analysis in the socio-economic calculation of multiple projects The recommendations of the Lebègue report were taken up in the Gollier report (2011), which continued to develop the idea of an analysis of hazards carried out in a manner adapted to each situation and not in a standardized manner. This report also specified the methods for calculating the risks related to a project, while stressing that the main obstacle to this risk analysis was the difficulty in determining the provision for risks. More recently, the report by the Commissariat général de la stratégie et de la prospective (Quinet et al. 2013) proposed to extend risk analysis to areas other than transport where it has been more specifically used. It clarified the risk analysis method by advocating and taking into account the uncertainty that weighs on economic growth since the profitability of a project often depends on this growth. This approach would help to “combat the bias of optimism” that characterizes some projects. The report suggested doing this by analyzing “systemic” risks, i.e. the relationship between project risk and macroeconomic risks by adding a provision for positive or negative risk to the valuation of the project, which addressed the main limitation of the Gollier report. This approach involves integrating financial risk analysis methods into socio-economic calculations. The report also recommended better analysis of the “current” risks associated with “imperfect” forecasting methods, data gaps, or variables external to the project (complex forecasts of economic growth, changes in oil prices that affect traffic trends, etc.). The report recommended using the scenario methods of private operators for this purpose. Finally, the report suggested extending the analysis period to the life of the projects (sometimes a century to include current transitions: ecology, global warming, and digital development).

3.5. Conclusion This overview of the main approaches taken by the public authorities to supervise the progress of the project evaluation and decision-making process shows that uncertainties and risks are gradually being taken into account. Social uncertainty has been taken into account since the 1990s, and financial risk, risk to the environment of the project, political risk, and traffic risk have also been taken into account since the 2000s. Public and private project owners have also increasingly formalized risk analysis methods since the 2000s. These methods include all types of risks, including regulatory risk, market risk, etc. It can be noted that the management of some projects anticipated some of these developments. The transition from a closed decision-making system (expert, politician, and public operator) to an open system (involving the public, associations, and local elected officials) has encouraged public authorities to take the comments of civil society into account at an early stage and possibly integrate them into the evaluation process. The increased legal framework and formalization of practices do not mean that risk and

uncertainty are under control, as shown in the case studies in the next chapter. Regular monitoring of practices can also generate other uncertainties and risks. 1 For example, CNEPA, the Comité national contre les excès du programme autoroutier (French committee against the excess of highway plans) served as a national representative for the action of 150 associations at a time when the national road master plan envisaged building more than 2,000 km of additional highways. The committee made specific arguments on the cost of transport infrastructure, network acceleration, and so on. It also criticized the massive development of the highway network, the procedure for choosing infrastructure that was too favorable to highways, the equalization between profitable and unprofitable sections, its environmental effects, its social costs, the justification of projects by the State (spatial planning, security, and economic development), and the cost. The committee wanted a rebalancing in favor of the railway and an increased use of multi-modal transport. 2 Decree No. 77-1141 adopted for the application of Article 2 of Act No. 76-629 of July 10, 1976, on nature protection, stated that the impact study should estimate the cost of the proposed compensatory measures. The implementation was rather marginal at the time. 3 The notion appeared with public utility easements (Article R 126-1 of the urban planning code) on the same basis as those relating to the conservation of natural heritage, national defense, and health. Some documents had the value of a public utility easement: plan of exposure to foreseeable risks, water development and management plan. The notion of public utility is also found in the conditions required for a project to be of general interest: a project of public interest (Article L 121-13 of the urban planning code), which has been the subject of a deliberation, or included in an urban planning document and which is of a public utility nature. 4 Circular Bianco No. 92-71 of December 15, 1992 on the conduct of major national infrastructure projects introduced several new features that, together with Circular No. 9161 of December 2, 1991, allowed the project to be “phased in.” The public debate resulting from this circular was to focus on the project before starting the route studies. This phase concluded with the infrastructure specifications, then a complete file on the project was submitted to a public inquiry. The State’s commitments were monitored and an economic, social, and environmental assessment of the infrastructure was to be carried out between 3 and 5 years after its commissioning (LOTI assessment based on the Inland Transport Policy Act No. 82-1153 of December 30, 1982). This phasing remains current. 5 RER: réseau express regional that serves the suburbs of Ile-de-France region and the center of Paris. 6 Source: interview (ex SNCF) from November 25, 2013. 7 The financial context of the decision-making process for major projects was then less constraining. In particular, the design and implementation of projects depended on a

closed and fairly flexible funding system. The 1992 HSL master plan provided for the construction of 3,500 km of HSL without addressing their financing. The national road master plans of 1984, 1986, 1988, 1990, and 1992 were part of a spatial planning policy. Traffic, which generates commercial revenues and makes it possible to achieve financial equilibrium, was generally provided for new routes designed to relieve existing infrastructures of their flows. The concessioned highways with insufficient traffic to ensure the profitability of the structure (A71 Bourges Clermont-Ferrand highway) benefited from the backing of the other projects already amortized by the semi-public companies that operate highway concessions (Société d’économie mixte concessionnaire d’autoroute (French mixed economy highway concession company), SEMCA). At the time, the financial balance of highways was not thought of by infrastructure projects but by SEMCA. The toll revenue from amortized and profitable highways (A6 Paris–Lyon) could then be used within the SEMCA to finance the works and the financial costs of the loans necessary for the construction of another highway, even if its forecast traffic did not make it profitable. This back-to-back system (banned since 2001) made it possible to build three-quarters of 12,000 km of the current highway network In addition, Autoroutes de France was able to use part of the commercial revenue from a profitable SEMCA to help finance a non-profitable SEMCA (Zembri-Mary 1998). At that time, the HSLs received public funding from SNCF and the State. 8 Law No. 82-600 of July 13, 1982 on compensation for victims of natural disasters. 9 Law No. 2003-699 of July 30, 2003, known as the Bachelot law, relating to the prevention of natural and technological risks and the repair of damage. 10 Source: RFF interview, December 13, 2013. 11 Source: Cofiroute interview, November 25, 2013. 12 Source: Cofiroute interview, January 8, 2014. 13 Source: Ingerop interview, December 10, 2013. 14 Source: Sepanso interview, January 24, 2014. 15 French commission for public debate. 16 Réseau Ferré de France (French company that previously maintained the railway network until 2014. It then became SNCF Réseau). 17 French operator of the railway network. 18 The financing of the high-speed lines was provided by the State and SNCF until the construction of the East HSL. The elected representatives of Champagne, Alsace and Lorraine took the initiative of participating in financing studies and stations for the East HSL in the early 1990s, in particular to show their involvement in the project to the State and SNCF, which were more reluctant to participate in its financing and implementation.

This approach was then used for other HSL financial arrangements (Source: Communauté du Grand Nancy interview, January 15, 2014). 19 Source: RFF interview, January 9, 2014. 20 ASF-ESCOTA : Autoroutes du sud de la France (French society for highways in the South of France) and Autoroutes Esterel, Côte d’Azur, Provence, Alpes (French society for the Esterel–Côte d’Azur, Provence and Alps highways); APRR: Autoroutes Paris-RhinRhône (company for the Paris–Rhine–Rhône highways); SANEF: Société des Autoroutes du Nord et de l’Est de la France (company for the North and East of France highways; SAPN: Société des Autoroutes Paris Normandie (company for the Paris/Normandy highways); AREA: Autoroutes region Rhône Alpes (French society for highways in the Rhône Alps region). 21 Source: http://www.aprr.com/fr/le-groupe/gouvernance-et-actionnariat. 22 Source: https://www.vinci.com/vinci.nsf/fr/item/finances-bourse-actionnariat.htm. 23 Source: https://www.liane-autoroute.com/liens_utiles/les_actionnaires_dadelac.

24 Source: http://a88-alicorne.fr/index.php? menu_type=1&num=1&id_menu=7&id_ssmenu=20&id_co=35&num_ssm=1&name=La+soci% 25 Source: http://www.alis-sa.com/fr/alis/index.php. 26 Source: http://www.a65-alienor.com/alineor-concessionnaire-de-lautoroute-a65. 27 Source: https://www.lisea.fr/lisea-en-bref-organisation-missions-engagements/. 28 Source: http://www.ocvia.fr/page/qui-est-ocvia-maintenance. 29 Such as the bankruptcy of the concession company TP Ferro, which built and operated the Perpignan–Figueras HSL. Currently, this company has been taken over by the French and Spanish governments (see details of the case study in Chapter 4). 30 Source: http://www.abertis.com/dyndata/19122005presentacionadquisicionsaneffrances.pdf. 31 Source: http://www.cna-autoroutes.fr/IMG/pdf/Rapport_2001.pdf. 32 Source: Autoroutes du sud de la France, panorama 2002, available: http://publi.vinci.com/vinci_autoroutes/asf/asf2002-fr.pdf. 33 ASF: Autoroutes du Sud de la France (South of France highways company). 34 Source: Cofiroute interview, January 8, 2014. 35 Source: Cofiroute interview, January 8, 2014.

36 Source: Public Private Partnerships Schemes and Railways Financing. PPP Projects for the Railway Network in France, presentation of Major Projects and PPP Support Service, Major Projects Division, RFF, Paris, February 17, 2014. 37 For example, an underestimation of construction costs due to insufficient studies. 38 These administrative authorizations concern “the authorizations, licenses, and permits required by the regulations in force and necessary for the work, commissioning and operation of the facility within a time frame that allows the schedule to be respected.” They include building permits, authorisations for classified installations for environmental protection, and so on. The private partner is responsible for obtaining these authorizations and bears the cost, particularly in the event of a delay in obtaining them. The public entity may assist in obtaining this, but this does not release the private partner from its responsibility (Source: MAPPP, Partnership Agreement, standard clause, version of November 18, 2011, www.economie.gouv.fr/files/clausier_type.doc). 39 The private partner is responsible for negotiating the purchase of land useful for the implementation of the project and managing expropriations with the competent authorities. It is responsible for delays in this phase and must assume any additional costs. 40 For example, if the soil is more unstable than studies have suggested and the foundations of the structure must be reinforced with techniques that are longer in their implementation or more costly than expected. 41 This may concern, for example, the financial consequences of the collapse of a tunnel: cost of securing the tunnel, rehabilitation, penalty for late commissioning, and so on. 42 For example, a construction defect that would generate additional maintenance costs is the responsibility of the private partner. 43 The private partner may be subject to penalties if the service does not achieve the quality provided for in the contract. 44 The private partner assumes the loss of commercial revenue if traffic is lower than expected. 45 For example, the service private partner is responsible for the maintenance and replacement of the infrastructure, which can cause additional costs if it was incorrectly installed at the beginning. 46 Mission of support for the implementation of Public-Private Partnerships contracts. 47 For more details on these financial aspects of contracts, see MAPPP sheet No. 12/16, “Cristallisation des taux, mécanismes de couverture du risque de taux en contrat departenariat”, http://www.economie.gouv.fr/files/directions_services/ppp/fiche_cristallisation_taux.pdf.

48 Such changes may include, for example, unforeseen changes in economic conditions that could affect the cost of the project or its revenues. They may also concern changes that do not fit into the other categories or unpredictable risks. 49 For example, an exceptional climatic event that could impact the progress of the work. 50 This was the case, for example, with the Grenelle 2 Law No. 2010-788 of July 12, 2010, on national commitment to the environment, which reinforced the need for project management to take into account the natural species to be protected. 51 For example, if the signaling system is modified on high-speed lines and requires a change of equipment on the contracted high-speed line. 52 Source: www.economie.gouv.fr/files/clausier_type.doc. 53 Source: Eiffage interview, November 19, 2013. 54 Source: ibid. 55 Source: Eiffage interview, November 19, 2013. 56 Source: Sabarly, C., “La ZAC (JDZ) un outil à double tranchant”, Le Particulier immobilier, December 19, 2006, available: http://leparticulier.lefigaro.fr/jcms/c_49835/zac-un-outil-a-double-tranchant. 57 Source: https://www.vinci.com/vinci.nsf/fr/item/finances-bourse-actionnariat.htm. 58 Source: https://www.eiffage.com/finance/actionnariat. 59 Source: https://www.zonebourse.com/BOUYGUES-4620/societe. 60 National Commitment to Housing Act. 61 French local public society. 62 For more information on preliminary studies and the procedure for awarding development concessions, please refer to the following document: Ministère de l’Écologie, du Développement Durable, des transports et du Logement, Concessions d’aménagement, guide des procédures de passation, 2016. 63 Source: SPLA Territoires publics interview, Rennes, November 23, 2018. 64 Source: ibid. 65 Source: SPLA Territoires publics interview, Rennes, November 23, 2018. 66 Facilities, works and activities. 67 For example, filling in a valley to avoid building a long viaduct can weigh on the water table or limit the river’s floodplain;

68 Practitioners call this dossier the dossier loi sur l’eau (water law dossier). 69 French master plan for planning and water management. The SDAGE indicates the watercourses that constitute biological reservoirs to preserve aquatic ecosystems, ensure protection against pollution, and develop drinking water resources. It was created by the Water Act No. 92-3 of January 3, 1992. 70 Green and blue frames are areas that provide ecological continuity between interconnected sites such as natural habitats for fauna and flora, breeding sites, resting and shelter sites, and so on. The green grid refers to terrestrial flora and fauna and the blue grid to aquatic fauna and flora. 71 French regional schemes for ecological coherence. 72 French planning and programming guidelines. 73 Source: RFF interviews, December 13, 2013 and January 9, 2014. 74 Source: Genes B., “Projets d’utilité publique: défendre son cadre de vie”, Le Figaro Particulier, June 28, 2010, available: http://leparticulier.lefigaro.fr/jcms/c_37942/projetsd-utilite-publique-defendre-son-cadre-de-vie. 75 Ordinance on the reform of procedures for public information and participation in the preparation of certain decisions that may have an impact on the environment. 76 Who manage the public inquiry. 77 Circular Bianco No. 92-71 of December 15, 1992, on the conduct of major national infrastructure projects, Barnier Law No. 95-101 of February 2, 1995, on strengthening environmental protection, Grenelle Law No. 2010-788 of July 12, 2010, on a national commitment to the environment.

4 How do Risks Manifest Themselves in Projects? 4.1. Introduction This chapter analyzes the environmental, political, social, economic, financial, regulatory, and technical (predictable or unforeseeable, favorable or unfavorable) events that stakeholders consider to be a risk, or an opportunity, as well as their impact on the project (blockage, delay, additional cost, and modification). The approach is used for transport infrastructure projects, JDZ projects, and urban planning operations. The purpose of this chapter is to present examples of risky projects for a political, social, institutional, environmental, archeological, and financial reasons. The risk may have occurred during design and implementation. For each project presented, the research consisted in analyzing the origin of each risk, its progressive social construction over time, and its impacts on the project and the stakeholders. We refer to the introduction for a discussion of the methodology and sources. The case studies are summarized by major risk type. The same project may encounter several risks or opportunities (in particular, the risk of delay and the financial risk, which are the consequences of other risks). We present each project in the risk category that was the most significant in terms of duration and impact on the project that is most often found. The criteria for selecting projects were as follows. The infrastructure and development and urban planning operations had to be recent enough to fit, even partially, into the new regulations on socio-economic assessment, impact assessment, consultation, and development concessions. The projects had to be representative of a wide variety of facilities (highway; high-speed line; metro; collective cultural, sports, and waste management facilities; housing, shops, and offices) located in urban, peri-urban, and rural areas. We have excluded technological risk projects or projects exposed to natural risks, which are already the subject of a rich literature, to focus on the study of risks that we could call a “project”.

Figure 4.1. High-speed lines map in 2019 (map: author). LGV stands for Lignes à’ grande vitesse, which is the French equivalent of an HSL This map shows the location of the high-speed lines (HSLs) analyzed in the chapter.

4.2. Political risk 4.2.1. High-speed lines Political risk is present in all transport projects. It generally appears at the beginning of the decision-making process during preliminary studies and initial consultations. It is manifested by a subtle interplay of elected officials who request or even require the State and/or the infrastructure manager to make special arrangements related to the project, a specific route, the protection of certain residents against nuisances, and in exchange for their financial contribution. 4.2.1.1. The South Europe Atlantic HSL: the withdrawal of many local authorities from project financing

Box 4.1. The South Europe Atlantic HSL The South Europe Atlantic (SEA) HSL is a 302-km-long infrastructure (see the location in Figure 4.1) between Tours and Bordeaux. Commissioned on July 2, 2017, it was the subject of a concession contract awarded to LISEA, a subsidiary of the Vinci group. LISEA must collect the tolls for using the infrastructure from the railway operators. The line costs €7.8 billion and the additional railway improvements (bypasses, connections, etc.) cost €1.2 billion.

Figure 4.2. View of the works on the South Europe Atlantic HSL in June 2014 (photo: author) The withdrawal of a local authority from the financing of a project may be perceived within SNCF Réseau1 as a major risk2, likely to put the general balance of financing at risk. This

was the case for the South Europe Atlantic HSL at the end of the 2000s and during the course of 2010. The project was widely promoted and relayed on a national scale by the Aquitaine “grands élus” (major representatives), Alain Juppé, Mayor of Bordeaux, and Alain Rousset, then President of the Aquitaine region, who participated in the funding arrangements. The elected representatives of Pau, the Basque coast, and Toulouse agreed to co-finance the South Europe Atlantic HSL project, provided that the line was extended to these territories by the Grand Projet du Sud Ouest HSL Project. The local authorities also included a clause protecting these requests in the financing protocols. RFF made regular calls for funds for the South Europe Atlantic HSL. Communities interested in these three additional branches (Grand Projet du Sud Ouest HSL Project) were entitled to withhold 30–50% of these amounts if the required deadlines for launching studies and public inquiries were not met. The risk that the local authorities of the Midi-Pyrénées region might withdraw their funding from the project, when they were the second largest funder, prompted the State to accept the Bordeaux–Toulouse HSL project as a priority (whereas the Mobilité 21 report (Duron 2013) had postponed it beyond 2030) and to accelerate the public inquiry. This project was estimated at €8.3 billion. It did not then have any funding. Under a clause in the concession contract, if the number of high-speed train trips is lower than expected, local authorities (regardless of their size) could be required to compensate for the resulting shortfall in toll revenue paid to the concessionaire in proportion to their share of financing. This risk was the counterpart of the return to good fortune clause also provided for in the contract3. This clause provided that the concessionaire should pay SNCF Réseau the infrastructure user toll revenues in excess of the forecasts from the fifth year of operation onward. SNCF Réseau pays this sum to local authorities in proportion to their contribution to the financing. In particular, local authorities were concerned that they would be exposed to the risk of having to compensate each other for insufficient toll revenues. The amount to be paid to the concessionaire in the event of bad fortune is difficult to estimate, as it is the burden of this expenditure on local finances or its effects on taxation, particularly in the case of small local authorities. This risk raised doubts in communities that were on the whole favorable to the project. 26 communities withdrew from the project along the way. 34 local authorities finally signed the HSL financing agreement in 2009, out of 58 requested by the State and RFF initially. Their contribution reached 79.65% of the total amount of the local authorities’ estimated contribution (Cour des Comptes 2014). Once the funding agreement was signed in 2011, 15 out of the 34 signatory communities involved in financing the HSL stopped their payments in 2014, creating uncertainty about finding compensation and continuing the project (Table 4.1), which was commissioned in 2017. The reasons given were diverse (Zembri-Mary 2018). There were principled positions against the financing of high-speed lines by local authorities. Those to the south of the project feared

that the additional branches would not be realized, despite a clause protecting their requests in the Financing Memorandum. Other local authorities were concerned about their new status as licensors (as was RFF). Table 4.1 The disengagement of local authorities from the financing of the South Europe Atlantic HSL4

Côte BasqueAdour urban area Grand Angoulême La Rochelle urban area community Marsan urban area community Pau Pyrénées urban area community Rochefort Océan urban area community Grand Auch Gers department Lot-etGaronne department Charentes maritimes department Pyrénées Atlantiques department

Amounts provided for the 2011 financing agreement (in millions of euros, 2009) 22.6

Shares actually collected at the end of 2014 (%) 41

8.9

91

7.4

13

6.2

13

18.5

64

1.6

46

0.2 1.5

9 9

29.2

34

24.5

41

69

45

Suspension of financial commitment or written withdrawal

Agen urban area community

8.6

64

Grand Dax Grand Montauban HauteGaronne department

6.9 2.6

6.2 13

58.9

28

Late payment without written explanation

4.2.1.2. The Brittany–Pays de la Loire HSL: local elected official leading the way

Box 4.2. The HSL: Brittany–Pays de la Loire The Brittany–Pays de la Loire (BPL) HSL is a 182-km-long infrastructure (see the location in Figure 4.1). It links Connerré (east of Le Mans) to Rennes. It was designed and built and then operated by Eiffage Rail Express (ERE), a subsidiary of the Eiffage group, under a partnership agreement. With a total cost of €3.2 billion, it was commissioned in July 2017. Elected officials could also speed up the process if they believed that the project is at risk. The Breton elected representatives and the Brittany region quickly felt that they would have to participate substantially to finance the Brittany–Pays de la Loire HSL in order for the decision-making process to progress because of competition from other projects. They anticipated taking a leadership role so that they could obtain fairly quickly the ministerial decisions that make the project irreversible and settle the project funding. Regional elected officials had to coordinate and seek agreements and compensation during the 1990s and 2000s with departmental elected officials. The latter were very cautious about the project and claimed that they could not participate in its financing, particularly in Mayenne. Their political acceptance was central to the route. RFF had a project management role in these debates and negotiations, and had to propose the right technical solutions5. These multi-year negotiations resulted in a set of compromises on the Laval and Le Mans services that were only slightly modified after the public inquiry. In 2005, the elected representatives of Brittany and Pays de la Loire regions adopted a common opinion, which gave them a certain weight in various decisions6. The preliminary design file approved in 2006 was in line with their requests. In this way, local elected officials regularly intervened with successive Ministers of Public

Works to ensure that the following phases of the process were undertaken – studies and public inquiry, particularly in a more difficult financial context. Indeed, the economic characteristics of the HSL project resulting from the preliminary design studies were strongly criticized by a joint audit by the Inspectorate General of Finances and the Conseil général des Ponts et Chaussées (2002–2003). After this audit, the President of the Brittany region feared that the project would be postponed indefinitely and that the project of the South Europe Atlantic HSL, supported politically by local elected officials with national functions (Alain Juppé7 and Jean-Pierre Raffarin8) would be favored. He, therefore, intervened several times with the government to have the project listed as a priority HSL. The 2003 Inter-ministerial Committee on Spatial Planning noted that the work began in 20099. Political leadership seems to have prevailed at this stage of the decision-making process over the unfavorable outcome of the studies. The Brittany and Pays de la Loire regions also facilitated the acquisition of land before the DUP so that the decision-making process could continue to move forward, which was quite unusual. RFF was initially reluctant, but the State was convinced more quickly10. The regions ensured that they contributed financially to these land acquisitions to encourage the RFF to do the same11, which it agreed to do in 2005. Land development began in 2010. The continuous political intervention of regional elected officials was then able to lead to the DUP, a decisive step in the decision-making process. In 2008, the HSL project was technically ready to be a part of the selectable projects in the 2008–2009 recovery plan put in place by the government of François Fillon, also elected in the Sarthe department. The Brittany region wanted to launch the financing study phase quickly, even though it meant financing 20.9% of the project (which is significant) in order to not “ease the pressure” on the State and RFF12 (Table 4.2).

Table 4.2. Distribution of Brittany–Pays de la Loire HSL financing among partners. Sources: BPL HSL, Financing and Implementation Agreement, 2011 for all funders except ERE (ERE, RFF, press kit LGV GLP, 2013) Amount in millions of euros, 2011 949.5

Share of project funding (%) 20.9

90.2 658.8

1.98 14.5

Finistère Departmental Council Ille-et-Vilaine Departmental Council Morbihan Departmental Council Côtes d’Armor Departmental Council Rennes Métropole Saint-Malo RFF The State EU

45.6 43.2 33.7 30.5 43.2 4.3 1,431.2 949.5 12.8

1.02 0.95 0.74 0.67 0.95 0.09 31.5 20.9 0.28

Holder of the ERE contract13 (loan and equity) TOTAL

1,200

26.41

4,543

100

Total Brittany and Pays de la Loire local authorities Pays de la Loire Regional Council Brittany Regional Council

The elected representatives of Brittany and the Pays de la Loire regions intervened with the government so that a decision on the choice of a type of financing could be taken14. RFF, the State, and the two regions opted for the partnership contract15 which made it possible to transfer to the private partner the risk of interface16 between various holders of prime contracting, works, supplies, and materials contracts. The regions’ leadership has enabled them to obtain funding conditions that have been very favorable to them. RFF/SNCF Réseau has provided 43% of the public funding (excluding ERE) and bears alone the risks related to its part of the project management, the risks related to the status of the partner of the partnership contract, and the commercial risks related to rail toll revenue17. The Brittany and Pays de la Loire regions succeeded in keeping the benefit of the good fortune clause, which is the most favorable result they could have expected in the negotiations.

Figure 4.3. The Brittany–Pays de la Loire HSL finished at the end of 2016 (photo: author) The cases of the South Europe Atlantic HSL and the Brittany–Pays de la Loire HSL have shown the importance of political coalitions and the convergence of the interests of elected representatives to limit risks, particularly financial ones (Zembri-Mary 2018).

4.2.2. Urban planning projects Unlike major transport infrastructure projects, JDZs and development operations are carried out by local elected officials. The latter deliberate, decide, and manage the project. At first sight, the political risk may seem smaller because there are fewer political actors, with sometimes divergent interests, and fewer funders. However, political risk is present in these projects. Among the projects studied, we can note forms of political risk: the withdrawal of the State from the financing of a local project, a refusal of local elected officials to support an intermunicipal project, or a risk of no re-election for elected officials in place. 4.2.2.1. The Arena in Orléans: a lack of national and regional political support

Box 4.3. The Orléans Arena At the end of the 2000s, the municipal majority of Orléans decided to build an arena with 10,000 seats, worth €103 million under a partnership contract. The project was one of several projects of the same type designed to equip France with spaces adapted to major sporting and cultural events. The first version of the project was located on Île Arrault, instead of on a racecourse, on the banks of the Loire, near a protected area classified as Natura 2000. The local authority also bought land from a former pharmaceutical plant for €8.3 million18 next door as a location for the car park. This location was then abandoned for another location under study.

Figure 4.4. Perimeter of the Arena project site from the Arena to Orléans (aerial photo IGN 2013. Map: L. Cazeaux, MRTE). For a color version of this figure, see www.iste.co.uk/zembri/risks.zip The municipal socialist opposition quickly joined forces, at the end of the 2000s with the Île Arrault Defence Association, which opposed the project because of the risks of environmental degradation and flooding of the site, a karst subsoil (and, therefore, rich in underground cavities), the poor accessibility of the site by public transport, the cost of the project, and the choice of private–public partnership19.

Figure 4.5. View of Île Arrault and the racecourse site in 2018 (photo: author)

Figure 4.6. View of Île Arrault protected by levees along the Loire (left) and the racecourse site (right) in 2018 (photo: author) The outgoing Regional President, François Bonneau, also expressed his disapproval of the project, as shown in this excerpt from an article in La République du Centre, dated March 18, 2010 (p. 7): “I can only agree with the fears of local residents regarding the choice of a site that is totally inappropriate for such equipment. I wrote to M. G.20 and M. L.21 several months ago to that effect. This […] had no connection at the time between my position and the regional election campaign as we know it today. As President of the Loire Mission, I cannot remain indifferent to the objections expressed”.

Reference is made to the Association pour la défense de l’Île Arrault. The latter informed UNESCO of the project to build the Arena on the banks of the Loire, whose valley is generally classified as a World Heritage Site. This classification provided that construction projects should be compatible with the outstanding universal value of the classified area. In December 2012, the Region Centre requested UNESCO’s advice on the compatibility of the project. UNESCO did not provide this advice. The region, therefore, withdrew its funding of €4 million, also relying on the fact that the State withdrew its subsidy. In July 2012, the payment by the State, via the National Center for the Development of Sport, of 40% of national subsidies for this type of equipment (i.e. €15 million out of a total cost of €100 million) was canceled due to irregularities observed in the decision. The Ministry of Sports explained this refusal as follows: “the commission, which decided on this grant, met on 20 April 2012, two days before the first round of the presidential election, and in a form that did not meet the regulatory criteria”22. The city of Orléans appealed to the Paris Administrative Court against this decision, asking the judge to issue an injunction to the National Center for the Development of Sport to award the grant. The municipality planned to have 50% of the project financed by local authorities and the State and the rest by a public–private partnership contract. The court did not dispute that the April 20, 2012 decision was tainted with illegality, but found that the city had not had time to properly present its observations. Meanwhile, a consortium made up of subsidiaries of Bouygues, the LoireCentre savings bank, and the architects Jacques Ferrier, Populous, and L’Heudé was selected in September 2012 to design and implement the project, in public–private partnership, which implied for the opposition that the project, considered as oversized, did not have a financing plan23. In the end, the new Minister of Sports, Valérie Fourneyron (appointed in April 2013), confirmed the refusal to grant the subsidy requested by the city to the National Center for the Development of Sport. In addition to these political uncertainties, the project was also attacked by the Arrault Island Defence Association, notably through press articles and petitions. The project was abandoned at the end of 2013 by the mayor because the 2014 elections were approaching. A project to renovate the exhibition center located in the Montées sector is currently being studied. A new congress center and a new sports hall are planned in the same location, which opens up an alternative to the project of using the disputed site of Île Arrault as a location. These facilities are planned with a view to organizing sports events in Orléans for the 2024 Olympic Games. The public inquiry, scheduled for late 2018, is behind schedule. It is still too early to analyze the positions of the actors. 4.2.2.2. Les Bordes JDZ in Crisenoy and Fouju (Île-de-France): local elected officials opposed to the project

Box 4.4. Les Bordes JDZ in Crisenoy and Fouju The JDZ des Bordes is a 110-ha logistics zone project, which is located on agricultural land in the communes of Crisenoy and Fouju, in Seine-et-Marne, and which has been planned by the intermunicipal joint union of Crisenoy, Fouju, and Moisenay since 2007. More generally, an industrial zone project has been planned for 30 years by the Schéma directeur de la région Île-de-France (SDRIF)24. Four “preferential urbanization zones” have been added to the 2013 SDRIF general land use map, including one integrating the territory of the two municipalities. Local projects must be compatible with this map. However, the notion of “compatibility” (and not “conformity”) allows local elected officials a margin of maneuver and interpretation. Local elected officials may oppose a project they consider to be at risk. This was the case in 2018 in Crisenoy. The 15 elected representatives of this Île-de-France village and dozens of inhabitants had been opposing the logistics zone project for about 10 years, due to the proximity of the A5 highway (Sénart-Langres). 25% of the area would be located in Fouju and 75% in Crisenoy, near the hamlet of Les Bordes, located in this commune. The project was the subject of a development agreement with a private developer. The first 21-ha area has been launched in the Fouju commune. The second area is to be carried out in the municipality of Crisenoy. Elected representatives vehemently opposed the project in a periurban and rural environment with a living environment that they consider quiet and pleasant.

Figure 4.7. Aerial photo and boundary of the perimeter subject to public environmental investigation in August and September 2017 (aerial photo IGN 2013; map: L. Cazeaux, MRTE). For a color version of this figure, see www.iste.co.uk/zembri/risks.zip The report of the Crisenoy Municipal Council of Friday, June 30, 2017 is particularly eloquent on the opposition of the Municipal Council to the proposed JDZ and the proposed road access to the JDZ contained in a recent decision of the Seine-et-Marne General Council. Opposition was expressed against a given project (certainly led by an intercommunality, the department, and the region) but not against higher decision-making levels.

The report was written as follows: “Mr. X (City Councilor) considers the impact study outrageous. It states that constraints already exist (A5 highway, HSL) and that it would therefore not be serious to add new ones”. It states that “The dwellings closest to the site are located in the hamlet of Les Bordes, about 850 m to the west of the site. The villages of Crisenoy and Fouju are further away. The location of the site does not therefore constitute an inconvenience for the dwellings”. The report continues: “According to the traffic plan envisaged, this leads to an additional daily flow of 500 lorries/day (50 to 60 lorries/hour) and 600 lorries/day in both directions on road 57 […] (compared to the 60 lorries/day currently observed). From a technical and safety point of view, occasional widening of the road network […] could be carried out on an occasional basis to improve traffic conditions. In order to properly assess the impact of this alternative situation, it remains to be noted that the hamlet of Les Bordes is currently facing significant visual and sound impacts along the roadside”. He added that “it therefore seems necessary to start working on this issue in depth and to consider, from now on, how to use this opinion to start the work of opposition to this project”. The minutes of the City Council meeting on Thursday, September 7, 2017 clearly show how elected officials perceived the JDZ project and why they did not want it. It was their opinion that the project would present technological risks and many uncertainties for their quality of life: “The public inquiry currently underway is revealing the existence of a logistics project using high-risk fuels for the municipalities of Blandy, Crisenoy, Fouju, Moisenay, and SaintGermain-Laxis. Mr. X describes the project: – more than 1,100 additional vehicles/day including 600 trucks; – 3 × 8 jobs and day and night; – on Sundays in case of peak activity; – citizens have filed a lawsuit against the access road, which plans to pass 150 m from the Hameau des Bordes. Existence of plan B that predicts that vehicles will pass through the Hamlet of Les Bordes. The municipality has chosen to support the citizens’ network; – there are plans to widen this path; – public lighting day and night; – combustible materials; – an opinion from the Departmental Fire and Rescue Service, while acknowledging that, in the event of a building fire, it would be impossible to contain it; – a thousand jobs are justified but, in fact, sanitation is only planned for 250 people”. The main potential causes of a fire risk were identified in the report of the single environmental public inquiry commission25. This was the storage of combustible materials,

natural gas installations, and refrigerants. Elected officials refused to give an opinion on a building permit application submitted in June 2017 by a major DIY store. They launched various means to publicly express their opposition during the public inquiry in September 2017 (petitions, public meetings, demonstrations, and articles in the press on their position), which gave rise to a favorable opinion from the committee. They hired a lawyer to bring an appeal to the Melun Administrative Court against the decision of the Departmental Council of November 18, 201626 concerning the deviation and recalibration of departmental road 57, which should allow access in the future JDZ so as to prevent its implementation. The project is, therefore, blocked for the moment. 4.2.2.3. The Passerelles project in Joinville-le-Pont (Île-de-France): the risk of non-re-election serves as an opportunity to review the project

Box 4.5. The Passerelles project, Joinville-le-Pont The Passerelles project is one of the 51 winning projects in the Inventons la métropole competition. This call for projects was launched in 2017 and aimed to accelerate the urban transformation of Greater Paris and to bring about projects that enable a better visibility of the city, especially in the districts near the stations of the future automatic metro, the Grand Paris Express. One of the projects, called Passerelles, is to be carried out by Eiffage on a 4,500 m2 site on the banks of the Marne. In an initial version, it consisted of three buildings including a residence for the elderly, apartments, and a vegetable garden on the roof.

Figure 4.8. Perimeter of the Passerelles project at Joinville-le-Pont (aerial photo IGN 2013; map: L. Cazeaux, MRTE). For a color version of this figure, see www.iste.co.uk/zembri/risks.zip Political risk can also manifest itself in the form of a risk of not being re-elected for the municipal team in place. A good example is the Gateway’s project. The height (18 floors) of the project was heavily criticized by some of the population and residents of neighboring municipalities who had seen the site. The mayor had supported Eiffage’s project because of the candidate architect’s experience in building residences for the elderly. The mayor chose to ask Eiffage to modify the project by taking a more global approach that would include the renovation of the nearby Barbussian City, mainly composed of social housing, and the requalification of the Île des Saintes péres, not to mention the construction of a swimming pool. The local opposition, the height of the project, and the risk that his mandate would not be renewed by voters dissatisfied with such a choice prompted the mayor to request this change, as he himself clearly explained in November 2018 in Challenges magazine: “We are going into the pre-election period. I’m usually quite brave when it comes to urban planning, but I’m not going to lose everything over this project”27. In general, the urban planning and promotion professionals were interviewed and stressed that elected officials prefer to modify a project or abandon it in the event of strong local opposition to avoid the risk of not being re-elected28.

4.3. The environmental risk This risk concerns the impact of the project on the human and natural environments. This is a

risk to which nature protection or site protection associations and residents are particularly sensitive. They do not hesitate to discuss the perceived risks to the environment, even if the project owner’s studies show the opposite, and to produce counter-expertise. The project owner is also required by regulations to produce the most detailed impact assessment possible (see Chapter 3), at the risk of refusing administrative authorizations. The case studies also show that judges can be sensitive to the arguments of nature protection associations in the event of an appeal against a project, even if counter-examples exist. The risk may also exist for the human environment in the form of a health risk, particularly in the case of pre-existing pollution from urban wasteland. This raises the question of the cost of depollution and its management.

4.3.1. The Langon–Pau highway (A65): a risk for vulnerable natural species insufficiently anticipated Box 4.6. The A65 Langon–Pau highway The A65 Langon–Pau highway (150 km) was opened in 2010. It was granted for 60 years to A’liénor, a subsidiary of the Eiffage and Sanef groups. The A65 construction design group was responsible for the design, management, consultation, land acquisitions, and construction of the project. Eiffage signed a design and construction contract with the latter and managed it. All the risks associated with these activities have been transferred to it by the concession company A’liénor, which assumes the traffic risk.

Figure 4.9. Route of the A65 Langon–Pau (map: author) The A’liénor concessionaire submitted a request for a derogation for the destruction of species and habitats of protected species to the CNPN during the first quarter of 2008. Depending on the procedure, the CNPN issues a favorable or unfavorable opinion. The State then grants authorization to start the work or not. This authorization is important for the project owner, especially in the private sector. Refusal may result in months of delay in commissioning and penalties under the contract. The project had to be adjusted to avoid impacts on fauna and flora with a detailed impact study. Impacts that could not be avoided had to be reduced by appropriate measures. The residual impacts were to be compensated for. The first case proposed 65 ha of compensatory measures and was rejected by the CNPN on the grounds that these measures were insufficient in relation to the protection needs of the natural species known on the route. During the first half of 2008, the project’s water law dossier was validated. The concessionaire then had to submit the second file to the CNPN.

A’liénor has reviewed the inventory of fauna and flora species and the measures to avoid, reduce, and compensate for the impacts of the A65 on protected and emblematic species, reaching 1,200 ha of compensation. The CNPN issued the second unfavorable opinion. Local nature protection associations would have benefited from national contracts (notably at the CNPN) to try to have the implementation of the A65 canceled29. The project owners interviewed felt that environmental experts were more demanding about the content of impact studies, species inventories, and the quality of the measures proposed from 2008 onward, when the CNPN examined the A65 project when the regulations already existed. The management of the A65 project testifies that: “What has changed is the attitude of civil society, government departments and inspection services. The post-Grenelle laws arrived after the A65”30. After the two negative opinions given by the CNPN in 2008, local elected officials also mobilized to justify a project they had been claiming for years. In particular, Alain Rousset, the President of the Aquitaine Regional Council31, and 25 local elected officials sent an open letter32 to Prime Minister François Fillon and Minister of Ecology Jean-Louis Borloo, relayed in the press to demand the completion of the A65 “in accordance with the planned timetable while imposing the necessary natural compensation on the concessionaire”. The concessionaire submitted the third file to the CNPN, which resulted in a 6-month delay in the project while additional studies were carried out. The new file prepared by the concessionaire A’liénor counted 48 animal species and 5 protected plant species that were affected. Impact reduction measures have included viaduct crossings of wetlands and watercourses and specific structures for large fauna and amphibians. Since 590 ha of the 1,603 ha highway right-of-way were likely to affect natural habitats of several protected species (flora, breeding, and feeding habitat), the residual impacts required compensatory measures up to 1,372 ha of the land to restore it and to ensure the necessary conservation management for the development of the species during 52 years of the concession. The CNPN gave a favorable opinion on the project on May 20, 2008 with six votes – including the vote of the State – in favor and four against. The vote was conducted by a show of hands. Jean-Louis Borloo, Minister of Ecology, confirmed the project on June 4, 2008. What happened between these last two opinions of the CNPN, one unfavorable and the other favorable to the project? The CNPN included environmental experts and representatives of environmental protection associations, including France Nature Environnement and Sepanso. The CNPN is an advisory body. The decision rests with the Minister of Ecology, Sustainable Development and Town and Country Planning for the emblematic species, and with the Prefect for the others. The CNPN was able to put the government in a difficult situation because it was caught between the positions of France Nature Environnement – a member of the CNPN – and pressure groups of the A65 – politics and associations, in particular – in a context of the national debate on the environment (Grenelle 1). The government had the opportunity to abandon the project but A’liénor had committed several hundred million euros to the project studies. The State should have reimbursed him

€500 million under the concession contract. The government could also continue the project by asking A’liénor to take into account the CNPN’s requests, on the one hand, and the CNPN members to moderate their final opinion, on the other hand. This is the solution that has been chosen. One of our interlocutors from the Eiffage group testified: “The Ministry of Ecology said: we are not going to stop the A65 in this tense context, but you (NdA A’liénor) will revamp the A65 so that it is compatible with the Grenelle. We learned a lot that time. When the State told us that you were going to make proposals to modify the project, we understood the expectations of these people [editor’s note: the CNPN]. And we were able to quickly propose viaduct modifications and project modifications that met regulatory requirements. The latter were more or less wellregarded by our engineering service providers”33. These occasional modifications to the project could involve, for example, extending a viaduct to leave sufficient space for a 100-year flood. At the same time, the government asked the members of the CNPN to comment on the environmental aspects of the A65 by avoiding adopting militant positions on road projects in general. It was reported in the national press at the time34 that members of the CNPN (with the exception of Sepanso, who were notoriously opposed to the project) had been approached by the Ministry of Ecology to accept the project. The company A’liénor claimed €25035 million from the State as compensation for the 6month interruption to the works. The sum was calculated on the assumption of a 6-month shutdown due to the project’s triple passage before the CNPN and a 3-month delay to resume the site and on the loss of toll revenue due to this delay. The postponement of the planning of works and roadworks toward winter made production ratios less good. This amount was finally considered too high by both parties. The discussions resulted in a 50% sharing of the financial consequences of the delay between the two partners. The State paid €90 million directly to the concessionaire and valued an additional €10 million in the form of a 5-year extension of the concession (which appears on the 2010 amendment). The shareholders of A’liénor have agreed to a capital increase in return (the amount of which has not been disclosed).

4.3.2. The non-hazardous waste storage center in Nonant-Le-Pin (Eure): a risk of underground pollution and a health risk

Box 4.7. Non-hazardous waste storage center in Nonant-Le-Pin A waste management company (GDE) purchased a 50-ha site in 2006 to install a megadischarge project. The planned activity consisted of collecting 2.5 million metric tonnes of waste from the automotive industry in particular, for 17 years, sorting and treating this waste in a plant and burying the final waste. The company planned to employ around 100 people. The project involved the construction of a final non-hazardous waste storage center and a sorting center for ordinary industrial waste, ferrous and non-ferrous metals, and electronic and electrical equipment waste, with a 200 m public utility easement area around it. The project had the particularity of being located in a territory that specialized in equestrian activities. In the immediate vicinity is the Haras National du Pin, a public and administrative establishment, which occupies 1,100 ha of land and many breeders and trainers specializing in racehorse training (e.g. Haras des Capucines).

Figure 4.10. Perimeter of the Nonant-Le-Pin non-hazardous waste storage center (aerial photo IGN 2013; map: L. Cazeaux, MRTE). For a color version of this figure, see www.iste.co.uk/zembri/risks.zip Residents and equine livestock professionals opposed the project because of its environmental risks, as indicated on the Facebook page of the Non à la décharge de Nonant (No to the garbage dump of Nonant) group: “Roadworks have begun for this mega landfill, which is intended to store thousands of tons of ultimate waste, composed of automobile shred residue (which cannot be reused in the automobile industry) and ordinary industrial waste, including organic waste. This mixture will produce foul-smelling and toxic fumes, causing sustainable pollution of the immediate environment but also more widely in the area, the site being on a tributary that irrigates the surrounding water network. And this is happening right in the middle of one of the best horse breeding grounds, where France’s international reputation in this field is built”. The public inquiry took place in 2007, following the favorable opinion of the Nonant-le-Pin Municipal Council36. The conclusions37 of the public inquiry report indicated that the: “GDE’s responses (to public comments) are not precise enough and cast doubt on

compliance with the obligations laid down by order” (p. 30). Local associations and residents (few in number) expressed their views on various subjects, half of which were related to the project’s impact on the environment or health (air and water quality, dangers related to fire risks in the center, road traffic, health risks, etc.). The public inquiry Commission’s opinion was drawn up for reasons that are not specifically environmental. Indeed, the Commission issued an unfavorable opinion for the final waste storage center and a favorable opinion with reservations for the sorting center. To justify the unfavorable opinion on the proposed storage center, it relied on the fact that the departmental plan for the disposal of household and similar waste in the Orne did not indicate the need for such a center in the department. It also considered that the 30-m-thick clay subsoil indicated in the GDE impact study avoided contaminating the water table, but that the company did not own the 200-m strip of compulsory public utility easement for land polluted by an operation center38, that this strip was partly on the SNCF track domain, that the 30-m-high dome of the center would harm the local natural heritage, which is a center of excellence in the equine sector, and that induced road traffic would be a source of pollution. It issued a favorable opinion with recommendations for the sorting and recycling center because of its good integration into the landscape, its economic impact for the municipality, and its usefulness for the department39. The Departmental Council for the Environment, Health, and Technology Risks issued a favorable opinion on December 7, 200940. The Nonant Environnement association, which brought together local residents, was created at the same time. In 2010, the Orne prefecture refused to issue an operating permit to GDE41, for environmental reasons and by highlighting risks to the environment and health risks. The decision was based on Articles 4 and 5 of the Environmental Charter, which states that “public authorities must ensure the implementation of the precautionary principle” and Article L. 512-1 of the Environmental Code, which states that “authorization may only be granted if the dangers or disadvantages of the installations can be prevented by measures”42. The decision was then based on the risk of the proposed sorting and recycling center for the hydrographic network. These risks were of several kinds: “risk of infiltration and transfer of leachate into the groundwater”, “proven risks of pollution […] of surface waters”, “health risk” linked to the mixing of other waste and automobile shredder residues not sufficiently taken into account in the GDE study, “fire risk”, “road safety risks”, and finally, “risks of damage caused to rail traffic due to fire risks”. GDE appealed this decision to the Caen Administrative Court. The latter canceled the prefect’s decree in 2011, considering the environmental and health risks likely to be generated by the center project differently. In other words, the level of risk was not so high for the court because the compensation provided by GDE was sufficient. The court’s decision was based on the fact that even though the departmental plan for the disposal of household and similar waste did not “mention the need for a storage center for ultimate non-hazardous waste”, the GDE’s project was included in it in 2007. The court

considered that the prefect’s opinion on the risk of water pollution was “vitiated by an error of assessment” on the grounds that the studies had shown a difficult penetration of leachate to lower levels and that the GDE protection solution was compatible with regulatory requirements. In addition, the court considered that the mixture of automobile residues and other waste still provided an acceptable level of risk for the population (unlike the prefect), arguing that the methodology used for health studies used the criteria in force and that the chronic exposure levels associated with the center did not have an impact on the health of the surrounding populations. The court found that there was an error in the assessment by the prefect with regard to the fire risk, which was limited by the operating method and the measures taken in the event of an accident. The court also argued that the risk of pollution and the risk of road accidents were lower since GDE would use larger capacity trucks, which would reduce mileage and emissions. Finally, with regard to the 200-m strip for servitude, the court considered that there was an error of law and that the prefect could determine a perimeter, including on the public domain. The Ministry of the Environment did not appeal this decision, which greatly disappointed the associations. The hydrogeologist of the Orne department also issued a favorable opinion on groundwater43 on February 9, 2009. The construction of the center was, therefore, able to begin in 2012. The opposition did not waver with the creation of the second association of horse professionals, Sauvegarde des terres d’élevage. The prefect then authorized the operation after 18 months of work. However, shortly before, in August 2013, the Argentan court ordered hydrogeological and environmental assessments before the site was opened and the site was closed for illegal waste in May 2014. GDE has appealed. The associations financed hydrogeological expertise by considering that the impact study provided by GDE was insufficient. This expertise has been entrusted to a professional member of the national association France Nature Environnement. This expertise, rendered in 201344, highlighted weaknesses in the impact study such as an error in identifying soils that were only semi-permeable, allowing buried pollutants to descend to the groundwater table. The expert report also indicated that the GDE permeability measurements “do not appear to be convincing”, that “no structural studies appear to have been carried out under and around the site”, and that it “appears that the site has been chosen at the site of an 800 m wide collapse ditch along the south wall of the Merlerault fault. A network of fractures has probably developed within this narrow gap” (p. 7). The associations then widely insisted on the notion of risk in their report of the expertise on their website45: “The results of this study are overwhelming for GDE and show that, contrary to what the company claims, the site presents major risks of groundwater pollution. The author even concludes that the establishment of a waste storage facility at this location would constitute ‘an environmentally irresponsible action’. […] What to conclude? Contrary to what GDE claims, the selected site does not have the hydrogeological characteristics required for the establishment of a final waste storage center. On the contrary, it contains all the factors of a

predicted disaster: – Flooding: heavy rainfall, frequent in the region, will quickly saturate a soil already saturated with water by the sub-surface water table, causing repeated flooding of the waste storage cells. – Local pollution: due to the absence of a passive barrier, pollutant-laden waters will mix with surface water tables, spreading their deadly content into surrounding livestock and agricultural lands, as well as into drinking water sources for human consumption. – Wide diffusion of pollution: finally, these waters will flow into the Orne via the Dieuge and the Ure, completing the spreading of pollutants within as wide a radius as possible and contaminating the entire Orne basin. The fact that these obvious risks were not taken into account and described in the initial GDE impact study, and that the State services did not assess their importance, clearly shows that this impact study was biased and partial, which in itself constitutes a legitimate reason for canceling the authorization to operate”. However, during this time, the associations began to occupy the site permanently. The Caen Court of Appeal overturned the decision to close the site in January 2015. The associations were then not appealed to the Supreme Court. They also obtained the support of some elected officials, in particular, the European deputy ecologist of the North East and the President of the Normandy region who called on Ségolène Royal, Minister of Ecology and Sustainable Development to obtain the support of the State in the process. The latter visited the site in the summer of 2015. The associations were then able to count on the support of the State and the prefect. There followed an incessant game of recourse on the part of the associations and GDE, the associations winning their case with the prefect and GDE with the administrative court. On September 25, 2015, a prefectoral decree considered that reopening the site presented a serious and imminent risk to health. This prefectoral decree was annulled by the Caen Administrative Court on October 22, 2015. On October 25, 2015, the prefect issued a new decree. On November 20, 2015, the Caen Administrative Court authorized GDE to resume its operations because: “under these conditions, taking into account the investments made and the significant financial damage linked to the total inactivity of the installation [would cause] a serious and immediate damage to the exercise of its activity”. The associations have also made appeals on the issue of expertise. In a decision of May 6, 2015, the Caen Court of Appeal confirmed the hydrogeological expertise requested by the associations on the causes of pollution. The association Sauvegarde terres d’élevage stated in a press release published on the same day on its website46 that:

“the Court, by intervening in this way, reinforces the importance of the expertise requested (by the association) by avoiding a ground of cassation by encroaching on administrative law by civil law. This securing of the observations already made by the experts is fundamental because they have already led to the updating of the deplorable state of the site and they will certainly explain the causes of the pollution observed in 2014”. In February 2016, Prime Minister Manuel Valls decided to entrust a mediation mission to the former Prefect of Lower Normandy. On March 18, 2016, the State Council annulled the decision of the Caen Administrative Court of October 22, 2015 allowing exploitation, which itself annulled the Prefect of the Orne’s prefectoral emergency order of September 25, 2015. Legally, this meant that GDE could no longer operate the center until a court decision was taken on the legality of the operation, with the resulting operating losses and the need to cover the site’s costs (taxation, operations, salaries, etc.). On March 22, 2016, the associations obtained the validation of the decision of the Argentan court from the Court of Cassation, challenged by GDE, which had ordered the closure of the site for possession of illegal waste. Residents, stud farm owners, and horse breeders opposed the project for 10 years, particularly under the aegis of the association Sauvegarde des terres d’élevage. They were able to finance their actions, thanks to the sale of stallion semen in Deauville for the benefit of their initiative, which generated €1 million in revenue. This sum made it possible to finance the expertise and lawyers necessary for their appeals to the administrative court. In total, more than 40 legal proceedings were launched by the two associations Nonant Environnement et Sauvegarde des terres d’élevage. In 2015, the opponents began an occupation of the area, in other words, a ZAD. They blocked the entrance to the site day and night so that work could not begin until the Administrative Court issued its judgment against their appeal on May 20, 2016. Currently, the sorting and recycling center is not functioning.

4.3.3. The Espace Confluent in Rezé (south of Nantes) or how to take advantage of a polluted urban wasteland

Figure 4.11. Perimeter of the Espace Confluent, Rezé (aerial photo IGN 2013; map: L. Cazeaux, MRTE). For a color version of this figure, see www.iste.co.uk/zembri/risks.zip The health risk is related to soil pollution caused by the presence of industries over the past decades. It should be noted that this risk may lead to the abandonment of the reuse of urban wastelands and the implementation of new projects on natural areas on the periphery, which, in turn, may be challenged for the destruction of natural areas. The case of the Espace Confluent project in Rezé, near Nantes, clearly shows the delay that the potential health risk associated with soil pollution can cause.

Box 4.8. The Espace Confluent, Rezé The Espace Confluent project in Rézé is located at the confluence of the Loire and Sèvre rivers. It consisted in densifying a polluted urban wasteland, with about 500 housing units, shops, and green spaces. The first building permits were issued in 2005. Eiffage is in charge of land development and construction of the project.

Figure 4.12. Tramway service to the Espace Confluent block in 2018 (photo: author) Eiffage signed sales agreements in 2003 with the three owners of the site, who were required to finance the clean-up of arsenic-contaminated land. However, one seller refused to meet this contractual obligation. He believed that since the pollution was due to an external soil supply from the 1950s, he was not responsible for it. The litigation began in 2006 and ended in 2014. The Prefecture requested an impact study, which was the subject of a public inquiry in September 2013. The investigating commissioner issued a favorable opinion on the project. ADEME has also implemented financial assistance, under the 2008 recovery plan, for polluted land that poses a potential health risk. This assistance was of two kinds. ADEME could contribute to the financing of land clearance and find a solution for the management of polluted land that was economically and environmentally appropriate for the developer, the owner, the local authority, and the future uses of the land by the inhabitants, based on a costbenefit analysis of the clearance47. In 2014, the soil was removed to a depth of 1.10 m. Healthy land has been created, for the amount of €2 million, 40% of which is covered by ADEME, to encourage the reuse of industrial wastelands in dense areas. The real estate project has been modified to take into account pollution and the cost of clean-up, at the expense of the owners. To build the three floors of underground parking initially planned, the land would have had to be cleared to a depth of more than 1.10 m, which would have been more expensive. The car parks on levels 2 and 3 have been installed on the first and second floors, in place of the apartments. The height of the buildings has, therefore, increased by two floors.

Figure 4.13. View of the interior of the Espace Confluent block in 2018. The yellow walls indicate the levels reserved for parking (photo: author). For a color version of this figure, see www.iste.co.uk/zembri/risks.zip

Figure 4.14. Marketing boards in 2018 (photo: author) The number of housing units increased from 490 to 505, which enabled the developer to generate more commercial revenue to bear the additional cost of land assets for 8 years compared to the estimated balance sheet of the operation. Eiffage had, in fact, acquired the land in 200548. The clean-up work was carried out in 2014. Construction work began in the same year. Housing and shops were delivered between 2016 and 2018. However, residents are advised against growing and eating edible plants in the open on these lands because of a potential health risk.

4.4. Social risk Social risk manifests itself in the form of concerns or oppositions on the part of residents affected by the project during the preliminary debate – when there was one – and the public inquiry. Individual disagreements may crystallize into a more general opposition. Associations for the protection of nature, a site, and the public can also express their unfavorable position on the project in the media, via an open letter to elected officials, sit-ins, media coverage, demonstrations, blocking the site, a dispute, or a ZAD. The high-profile action of the associations against the Notre-Dame-des-Landes airport project and its occupation by a ZAD is an example. Social risk can generate significant delays and financial risk for a project if it is not controlled. It is perceived to be a substantial problem for public and private project managements.

4.4.1. The Lyon–Turin HSL: a very active cross-border opposition Box 4.9. The Lyon–Turin HSL The 270.7-km Lyon–Turin HSL has a 140-km section in France (see location in Figure 4.1) entrusted to SNCF Réseau (formerly RFF), an 84-km Franco-Italian section (including the 57.1-km base tunnel between Saint-Jean-de-Maurienne and Susa), entrusted to Lyon Turin Ferroviaire (LTF) then to Tunnel Euralpin Lyon Turin (TELT), and an Italian section of 46.7 km between Susa and Turin, entrusted to Rete Ferroviaria Italiana (RFI). The particularity of this project is that it is cross-border. An intergovernmental commission was created in 1996 by the two governments to steer and validate the studies presented by LTF. The members of this commission were technicians (Ministries of Finance, Transport, members of railway operators, etc.). SNCF carried out the first studies for a transalpine passenger high-speed line project in 1989. The project was included in the national master plan for high-speed lines and the transEuropean transport network in 1992. The objectives were to connect the isolated Italian highspeed network to the European network, to shift part of the road traffic from alpine roads to rail due to their projected saturation by 2010, to increase the accessibility of the Northern Alps and regional links, and finally, to reduce the environmental impacts of road traffic. The project has received variable support from States, regions, and elected officials in large urban areas. However, this project has been and still is the subject of very strong opposition from the French and Italian sides. The first consultation of elected officials and the public took place in France between October 1997 and January 1998. The local authority wanted to modify the project to take freights and passengers into account in an equivalent way. The question was then asked to drill two independent tubes, which would have increased the cost of the project. However,

several studies have shown that the expected traffic and the projected socio-economic and financial profitability of the project are likely to be low. The report La politique française des transports terrestres dans les Alpes published in 1998 was specific on this last point: “it is extremely difficult to make the project profitable. Not to mention financial profitability, it is sufficient to indicate that annual passenger traffic in 2015 is estimated at 6 million. If the new structure allows these users to save one hour, this represents a socio-economic gain of about 600 million francs, to which should be added the 10% of passengers involved: 30 million francs, i.e. a total of 0.7% of its cost. On the same date, annual freight traffic could be 20 million tons: the infrastructure would save around 5 hours by avoiding congestion. Depending on the value of the time used, this represents between 250 and 1000 million francs, or between 0.3 and 1.2% of additional profitability. In total, the socio-economic profitability will be around 1.5% on the bases usually used for this type of project. It would therefore require considerable external savings to achieve a positive updated balance sheet” (Brossier et al. 1998). The same report recommended that public funding is used and that the project should be phased in or even postponed, allowing traffic to increase. An unforeseen event then prompted the public authorities to continue with the project. A serious accident occurred in February 1999 in the Mont Blanc road tunnel, killing 39 people. In 2001, two decisions were taken to move the project forward. The Franco-Italian agreement of 29 January ratified the two countries’ commitment to building the high-speed line. The creation of the Lyon Turin Ferroviaire (LTF) company made it possible to start additional studies on the Franco-Italian tunnel. RFF was in charge of project management for the French section studies, LTF of the international section studies, and RFI of the Italian section studies. These decisions came at a time when a surprising law had just been passed in Italy in 2001: the Legge Obbiettivo (Law No. 443 of 2001), in a European context of a fairly gradual opening of the decision-making process for major projects to the public. This law has streamlined the process of project approval by public authorities and environmental studies. It also indicated that the Lyon–Turin high-speed line was a priority project. In other words, it could not be questioned, except along a 60 m strip on its route, which allowed the project to be modified very marginally. The law also provided for the financing of compensation of up to 5% of the amount of the project to compensate for nuisances that would affect residents. An information file on the cross-border section (between the border and the lower Susa valley) was presented in 2002 to the various institutional representatives (Province, city, Turin Prefecture, Presidents of the Communities Montana alta/Bassa valle di Susa). The dispute, which concerned environmental, social, and political issues, began in the 1990s and developed in the 2000s (Sutton 2013) in the Val de Susa with two years that stick in the mind: 2005 and 2006. The demonstration of December 8, 2005 against the installation of the construction site of the reconnaissance gallery provoked virulent demonstrations. Opponents spoke through the No Tav movement (Treno ad Alta Velocità, Italian equivalent of HSL). They opposed the tunnel route, which crossed a subsoil composed of, according to some studies, uranium and asbestos, which would expose passengers and inhabitants to a health

risk, traffic forecasts estimated as too optimistic, and the project’s supposed environmental impacts (one of the arguments of the HSL promoters was, however, a shift from road freight to rail). Opponents considered it sufficient to bring the classic historical line up to standard. The dispute also concerned the procedures for choosing the route, after the vote on the Legge Obbiettivo. The latter was seen as a way to get the project through without consultation49. There was also a historical opposition position in the Susa Valley that fed opposition to a decision to carry out this project, which was considered too centralized. Environmental and anti-globalization pressure groups from other regions also fueled the discourse of residents and municipalities50. The Italian State then decided to relaunch the project with a new procedure, more participatory than the previous one, entitled “Services Conference”, which made it possible to stabilize the route and details of the line. This organization, independent of the project owner, examined the projects submitted by RFI and LTF, ministries, local authorities, and so on in order to obtain administrative authorizations. A technical observatory was responsible for holding weekly meetings with residents, elected officials, and experts. More than 300 hearings took place and 60 international expert opinions were heard. The observatory studied the traffic potential of the historic line, its growth potential, the functionality of Turin, and the route scenarios in relation to the demands of local authorities and inhabitants. The results were validated by the Institutional Conference of the consultation in 2008. A preliminary project related to this new route was developed in May 2009 with local authorities, which was a novelty in itself51. The new project on the Italian side decided the tunnel should pass south of the conventional line (and no longer north) in order to capture freight traffic from Orbassano (where freight shuttles arrived) and serve Turin. In this context, events accelerated on the French side. On March 19, 2007, the French Prime Minister signed the declaration of public utility for the French part of the cross-border section, between Saint-Jean-de-Maurienne and the border. The preliminary design studies for the new Italian side route were presented to the Italian authorities in June and July 2010. This new scenario has been the subject of another very strong opposition in the Val de Susa. Opponents have even been prosecuted. The project was adopted in Italy in August 2011, and the final project studies were initiated in early 2012 and approved in 2014. Meanwhile, additional studies in France supported the position of opponents to the No Tav movement. In 2009, for example, preliminary design studies estimated the project at €20 billion, 8 billion more than in 2002. In addition, the distribution of funding was not known, which created uncertainty for the project. In 2011, RFF estimated transalpine rail freight traffic at 15 million tons. However, the capacity of the modernized conventional line between Lyon and Turin was 20 million tons, which might seem sufficient given that freight traffic had been falling since the 2000s on this route. The Cour des Comptes also strongly criticized the rapid implementation of the HSL project in a summary judgment, citing their historical arguments.

In the end, the challenge of the project in Italy blocked the project on the Italian side for 5 years. As the Cour des Comptes summarizes it: “On the Italian side, the inadequacy of the initial consultation led to the project being blocked. The route had to be significantly modified, resulting in a delay of five and a half years. The duration of LTF’s existence was, therefore, extended in March 2009, from the end of 2010 to December 31, 2013”52. The financing agreement between France and Italy on the financing of the international tunnel (France: 25%, Italy: 35%, and EC: 40%) was signed on December 3, 2012. Indeed, European funding has been obtained and its continuation has required that States officially move forward on the project. The EU confirmed its agreement to the additional funding of 35% under the new Financial Regulation (2014–2020) for the Trans-European Networks (TENs). On the French side, the public utility declaration decree of the Lyon–Saint-Jean-deMaurienne region was signed on August 23, 2013. France Nature Environnement appealed against the declaration of public utility in March 2014 for the following reasons. The project was not the subject of a public debate, although France Nature Environnement requested it. The association considered the impact assessment insufficient with regard to the hydrological impacts of the project, such as the environmental authority in 2011, and the socio-economic assessment incomplete, such as the Cour des Comptes. France Nature Environnement also contested the phasing of the project and the phasing of the procedure, which were not explained during the public inquiry, although they condition the public utility of the project and the implementation of each phase is uncertain53. These arguments are explained by the representative of the collective against Lyon–Turin, who is also a collective procedure’s economist. This collective has been very active in the media and has organized several demonstrations against the HSL, some of them with No Tav during the years 2000 and 2010. For the association representative: “This (the environment) was not the subject of the challenge of this project. The challenge was the lack of public utility and in particular the lack of knowledge of all the main texts […]. There is the risk that there are radioactive rocks, it’s true, but that is not the core of the problem. Just like the disappearance of agricultural land. It may well be decided to execute 30 hectares of land if public health is at stake. There is arbitration to be done. Concerning Lyon–Turin, the question of the usefulness of the project comes before the question of health and ecological risks. Is this investment needed? The existing line is capable of eliminating 1 million heavy goods vehicles, or 75% of road traffic. By using 60% of the existing line, it is possible to achieve the objective of the European Union’s White Paper, which recommends a 50% rail share for freight transport by 2050. Who can take responsibility for throwing public money away for nothing?”54. With regard to the absence of public debate, the associative representative stated that:

“The debate is the 1995 law. There was no such thing. You are operating within the framework of a consultation dated 28 May 1993 and organized under the influence of the Bianco circular with a personal adaptation because there was no public information or participation of each citizen. Therefore, the Bianco circular was violated. Except it is not the text of the Bianco circular that says that every citizen must participate”55. Opponents also criticized the imprecise nature of the studies on the origin of the financing and the share provided by the State, local authorities, and the toll rate paid by rail operators to RFF. For the association representative: “If you do not know the source of financing, which is the case for the entire route, including the cross-border section, you cannot calculate the net present value56. So you cannot release a public inquiry file, so the Ministry of Transport cannot let it go, nor the Directorate General of Infrastructure, Transport and the Sea, and above all the Prime Minister does not have the right to sign the DUP”. For the activist, the information provided in the public inquiry file was distorted: “But when you read in the public inquiry file that the path pricing forecast is the same as the one used by RFF today, i.e. 5 euros per train/km. When you know that RFF is losing money on its train routes and writes that the km by train costs it 18.50 euros, on the basis of new lines at 10 million km, for Lyon–Turin it is 150 million km. Intuitively, we lose 5 times more money at 150 million/km compared to 30 million/km”57. The French Cour des Comptes published a report in 2014 again criticizing the socioeconomic profitability of the project, which was accompanied by a warning from the European Community. The Cour des Comptes summarized the situation as follows: “This too low socio-economic profitability is evident, for example, for the Lyon–Turin route, which the Court criticized in its summary judgment of 1 August 2012”. France decided to pause this project in 2017 for financial reasons. France Nature Environnement lost its appeal against the DUP by a judgment of November 9, 2015 handed down by the State Council. The latter argued that the DUP should not be preceded by a public debate, as the characteristics of the project were determined in 1994, before Law No. 95-101 of February 2, 1995 on strengthening environmental protection, known as the Barnier Law, making this debate mandatory. The State Council also considered that the conditions for conducting the public inquiry were regular, that the damage to private property, the economic cost of the project, and the environmental impacts did not reduce the public utility of the project because of the planned pollution reduction measures, and that it was not for the State Council to decide on an alternative solution to the high-speed line. However, social opposition to the project continues on the Italian side. Due to the access of some No Tav activists to the new government, the social opposition is supported by the Italian coalition government between the M5S and the League, which is currently strongly criticizing the cost of the HSL. Luigi Di Maio, a member of the M5S party and the new Minister of Economic Development, is a long-time strong opponent of the project, who has

already campaigned alongside the No Tav movement. He has decided to appoint 14 experts to re-evaluate the project. However, these experts are considered not to be very favorable to the line. Opponents of the project continued to express themselves, including in a publication that provides information on the current reasons for this opposition. This document is entitled “150 reasons to be against Lyon–Turin. Brief technical considerations on the project on the occasion of the 150th anniversary of the unity of Italy and the 20th anniversary of the No Tav movement”. It should be noted the reference to Italian unity, which took shape in 1871, and which may be a sign of opposition to projects initiated by supra-national institutions. This text specifies that planned freight traffic will be much lower than expected, points to the risk of additional costs, criticizes the need to build another line to Slovenia requested by the EU, and stresses the sufficient capacity of the conventional line to support existing and projected traffic, which fell by 31% between 2000 and 2009 on Alpine highways58. Criticism of the opportunity and cost of the project also continues in France, as evidenced by the recent reuse of No Tav’s arguments (see above) on the blog of the Collective against useless major projects including the Lyon–Turin line. Social (and more recently political) uncertainty on the Italian side has slowed down the project considerably, as it has opposition in France. It should be noted that the presence of No Tav activists in the government in Italy is not likely to facilitate cross-border consultation for the continuation of the project. The still unresolved questions of the current utility and financing of this project, supplemented by studies at the highest level of the French State, have also served the Italian and French disputes (since these reports of the Cour des Comptes can be found as an argument of the No Tav movement) and weakened the political decision. Five of the nine kilometers of the tunnel’s reconnaissance gallery59 were only built at the end of 2018. No work on the access roads between Lyon and Saint-Jean-de-Maurienne and in Val de Susa is planned. But to continue the work, France also wants Italy to finance its 35% of the project. The report commissioned by the Italian government from 14 experts was published in February 2019. One expert refused to sign it. He indicated that the profitability of the project would be insufficient if the line was to be commissioned and that there is no interest in completing it. Another report by lawyers from the Italian Ministry of Transport indicates that stopping the project would be very costly because States would have to spend between €200 and €500 million to restore the site, €600 million to repay loans granted by the European Union between 2015 and 2019, between €500 million and €1 billion to compensate the companies involved with the site, and between €1.5 and €1.7  billion to bring the historic tunnel up to international standards60. Therefore, there would be no choice but to continue. Stopping the project could be financially risky. At the moment, it is very difficult to say what the future of this project will be.

4.4.2. Île Seguin in Boulogne-Billancourt (Île-de-France): years of recourse before mediation

Box 4.10. The Île Seguin Project The Île-Seguin project is located on an island of 11.5 ha, between Boulogne-Billancourt and Sèvres (Hauts-de-Seine). The Renault plants that had occupied the site since 1929 were closed in 1992, leaving a vast urban wasteland. The island was bought at the end of the 1990s by the SEM Val de Seine Aménagement, which was 64% owned by the city of Boulogne, 15% by the Caisse des dépôts et consignations, and 10% by the Hauts-deSeine department. This island has been the site for several cultural facilities, offices, and gardens projects, several of which have been abandoned.

Figure 4.15. Perimeter of the Île Seguin operation in Boulogne-Billancourt (aerial photo IGN 2013; map: L. Cazeaux, MRTE). For a color version of this figure, see www.iste.co.uk/zembri/risks.zip An initial project to develop the island in the form of a museum of contemporary art funded by the Pinault Foundation was proposed in 1999 with the objective of opening in 2005. The first agreement was signed with the city of Boulogne-Billancourt, and then, an international architectural consultation was organized in 2001. The building permit has been submitted and calls for tenders launched. Renault sold the 3.5-ha site at the tip of the island to the Pinault Foundation in 2004, with one condition. The regulatory framework for the development of the island was to be established by early 2005. However, the project was delayed for administrative and regulatory reasons. Procedures for land clearance, demolition of plant buildings, and shoreline reinforcement took longer than expected.

Figure 4.16. The northern end of Île Seguin in March 2016 (photo: author) In 2004, ex gratia and then contentious appeals against the PLU, which was considering a certain densification, blocked the project once again. At the same time, the preparation of urban planning projects for the districts near the island and the future museum was carried out on an ad hoc basis, the nature of the planned programs remaining unclear, and the modification of urban planning documents quite lengthy. However, the Pinault Foundation had set a complete development of the island as a condition, when the museum is opened, to make it attractive, which seemed impossible if the latter had remained isolated in the middle of a wasteland or land under construction for many years. The end of the recourse against the PLU in 2005 would have made it possible to launch the work, but with a possible opening of the museum in 2010, and without any assurance for the Pinault Foundation that the construction of the 150,000 m2 promised by the city of Boulogne-Billancourt would be completed. As a result, the Pinault Foundation decided to stop its project in an open letter published in Le Monde on May 10, 200561: “But even if, through an alliance of the best wills, all the uncertainties, which remain great, were to be resolved, I could not launch the construction site until the end of the year at best, which would delay the museum’s opening until 2009– 2010. Unfortunately, this deadline is still very uncertain and in any case far too far away for me”. The future of the island’s development was then discussed against a backdrop of political rivalry during the 2008 municipal elections. Jean-Pierre Fourcade, mayor of BoulogneBillancourt for two terms, resigned in 2007 to allow his runner-up to become the mayor. He remained a senator on leave from the UMP party (right-wing). Jean-Pierre Fourcade had developed an important project for the island and launched several operations. However, the government then in power, without having any prerogative for the development of this land, put forward the idea of creating a sculpture park and cultural facilities. At the same time, the

UMP, which was also a majority party, pushed Pierre Baguet’s candidacy as the mayor of Boulogne-Billancourt against the current mayor (ex-dauphin of J.-P. Fourcade), who withdrew. Jean-Pierre Fourcade saw this as a risk of litigation and a financial risk for his project to develop the island. He decided to run for re-election. He spoke at an association general assembly on January 24, 200862: “If a wacko tells us that we are no longer building, we lose €200 million in land charges. Who will pay? You, the citizens of Boulonnais! […] Not only have I approved projects, I have sold square meters. 57,000 m2 of buildings have already been defined and launched. If we cancel them, we will increase the number of disputes”. Indeed, Mr. Fourcade’s mandate made it possible to sell land to Cogédim-Intercontinental to build a four-star hotel, launching a study for a residence for artists and researchers and a building for the American University of Paris. These three projects enabled the development SEM to receive €30 million and were delivered in 2010. A music hall was also planned. Negotiations were also underway with the National Cancer Institute for the construction of a building. In 2008, the UMP candidate, Mr. Baguet, was elected to the mayor’s office of BoulogneBillancourt and proposed a less dense project (110,000 m2) than the previous one by Mr. Fourcade (175,000 m2), with 4,000 m2 of gardens and sculptures and 110,000 m2 of activities and services (concert hall dedicated to music, contemporary art creation site, etc.). The project was entrusted to the architect Jean Nouvel, who divided 73 ha of the island into three sectors: a sector dedicated to music with concert halls in the north, a sector dedicated to art with 20,000 m2 of galleries in the south, and a sector with shops, a film complex, companies specializing in the media, a residence for artists, or a hotel in the center. The project had five towers over 100 m high and 335,000 m2 of buildings, which was much higher than the project presented during the 2008 municipal elections63. The first deputy mayor, opposed to this densification and support of associations, resigned from his post in 2010, asked for a postponement of the vote on the new PLU, which would allow 335,000 m2 of construction to be carried out. The risks put forward by the elected representative were social and financial, as he said in an interview: “I simply wrote to the mayor asking him to postpone the PLU vote on Île Seguin until next October in order to allow constructive consultation between the associations. We all know that a PLU allowing 335,000 m2 of construction, including five towers over 100 m high on Île Seguin, will be hit by a wave of legal action that will have a major consequence for Boulogne-Billancourt: this will seriously jeopardize the city’s finances and lead it to bankruptcy”64. The year 2011 marked a point of no return for the project with the beginning of 9 consecutive years of litigation between environmental protection associations and the town hall. The local residents’ collective Vue sur l’île Seguin made an initial recourse to the CergyPontoise administrative court in 2011 against the revision of the PLU “to allow the realization of the first development project on Île Seguin, in particular, by the architect Jean

Nouvel, whose purpose was to build approximately 310,000 m2 of offices and (cultural) facilities, mainly in the form, in part, of ‘castle towers’”65. In this context, Mayor M. Baguet asked Jean Nouvel in 2012 to review the first project. A project proposing three scenarios was presented. The scenarios varied according to the number of towers (none, 1, or 4) and the area devoted to green spaces and shops. A vote was held to have the project chosen by the population. The option with a 110-m tower and 255,000 m2 of construction was chosen. However, the project was put on hold because the administrative court did not issue its decision until July 9, 2013, 18 months after the local vote. The judge annulled this review for the following reasons presented on the court’s website66: “It has been decided to cancel this deliberation by considering, first of all, that the simplified revision should have been the subject of a public safety study (Article R. 11148 of the urban planning code) and an environmental assessment (Grenelle law 2 No. 2010-788 of July 12, 2010 and European directive 2001/42 of June 27, 2001)”. He then considered that the public had not been sufficiently informed during the public inquiry: – on the one hand, that the file submitted to it was not complete with regard to the description of the operation, in particular as regards the number, height, and location of the “castle towers” (notice) and as regards the project’s impact on the environment and risks (presentation report); – and, on the other hand, that the draft submitted to the public had been substantially modified after the closure of the public inquiry, thus requiring the organization of a new inquiry. Finally, he admitted that the operation, which is located around the “Pont de Sèvres–Île Seguin” station of the Greater Paris public transport network, should have included the construction of social housing pursuant to Article 24 of the Greater Paris Act67, since the municipality of Boulogne-Billancourt does not achieve the objectives set by the SRU Act68. The PLU was revised on July 4, 2013 to adapt it to the 110-m tower project and 225,000 m2 of buildings. But the associations Boulogne Environnement, Action environnement BoulogneBillancourt, Intégrer Billancourt, Vivre à Meudon, and Val de Seine Vert appealed again to the administrative court on January 4, 2014 against the new PLU. As the time limit for the court’s decision is 1–2 years, the project has again fallen behind schedule. At the same time, two environmental protection associations, Boulogne Environnement and Action Environnement Boulogne-Billancourt, appealed against the building permit for the R4 project for a contemporary art city, designed by Jean Nouvel. The appeal was withdrawn in September 2014. But the promoter’s legal difficulties forced him to sell the land to a developer. In 2015, the mayor sought a compromise by proposing to the associations a project with a

tower of 50 m maximum, 240,000 m2 of construction, and a Lieu de memoire (site of memory) at the Renault factory. The financial consequences were very serious at the time. The city of Boulogne-Billancourt had spent €300 million on development and the development SPL Val de Seine Aménagement had a debt of €150 million and an operating deficit of €100 million69. Only one association accepted this new project and withdrew its appeal. The other associations continued their legal action. The president of one of them, Boulogne Environnement, stressed that “the proposed protocol raises too many questions and uncertainties”70. In 2017, the Bolloré group acquired the central part of the island to build the Vivendi-Canal group’s headquarters, which consists of 112,000 m2 of offices and studios, a 12,000 m2 garden, a 3,000-seat sports center, and a swimming pool open to the public. This project resulted in a new revision of the PLU. As the associations did not waive their right to appeal, the city initiated a mediation procedure that lasted more than a year to validate the fifth PLU.

Figure 4.17. The Seine Musicale under construction in 2016 (photo: author) The mediation resulted in a lower density with buildings of 230,000 m2, towers limited to 75 and 92 m with five openings 20 m wide between each to avoid obstructing the view, the creation of a 1.5-ha public garden, and the prohibition of car traffic. In addition to the cultural space of the Seine Musicale, a multiplex, a hotel, a modern art foundation, and the headquarters of the Bolloré group are planned.

4.5. Institutional risk This concerns, in particular, the evolution of administrative doctrine on a subject affecting the actors’ practices. Circular No. 91-61 of August 2, 1991, which specified the stages of railway projects, then the circular Bianco of December 15, 1992 on the conduct of major infrastructure projects and Barnier Act No. 95-101 of February 2, 1995 on the strengthening of environmental protection, which introduced public debate, constituted a real change for

experts in public contracting, who did not wish to open up the decision-making process of projects to the public as quickly as these texts requested. Institutional risk can have a significant impact on a project. The change in environmental protection doctrine when carrying out development, urban planning, and infrastructure projects in 2008 with the national debate on the environment is one example. Act No. 2009967 of August 3, 2009 on the implementation of the Grenelle Environment Round Table (known as the Grenelle 1 Act) recalled the obligation, which appeared in French law in 1976 with Act No. 76-629 on nature protection, for project owners to avoid their projects impacting on fauna or flora, to reduce unavoidable impacts, and to compensate for residual impacts. The law has instituted a change in the scale of compensation. It forced project owners to consider compensation on the scale of the ecological continuities of the species, i.e. territories not occupied by a species but nevertheless favorable to that species. The CNPN had to validate any studies on fauna and flora carried out and the measures envisaged by the project owner to reduce, avoid, or compensate them. A rather negative observation was made about compensation at the beginning of the debate at the Grenelle de l’Environnement. On the one hand, the impact studies introduced by Act No. 76-629 of July 10, 1976 on nature protection and carried out by project owners tended to consider compensation directly to quantify at what level the impact should be offset, without going through avoidance and reduction stages (Vanpeene-Bruhier et al. 2013). On the other hand, compensatory measures were only provided for protected species and were rarely implemented. The State services issuing the work permits had the possibility to indicate the compensatory measures to be taken but did not use enough of them. We assume here that the studies necessary for the establishment of these measures could be missing due to the lack of an obligation to carry them out. This stricter application of practices for environmentally assessing projects and measures could not be anticipated by the A’liénor concessionaire for the A65 Langon–Pau highway. It linked it to a change in administrative doctrine71. It had to amend its file three times before obtaining a favorable opinion from the CNPN (see above). Currently, carrying out a thorough impact assessment and a fair assessment of compensation is fundamental for a project owner in order to obtain authorization from the environmental authority within the time limits set for an infrastructure project or a development project. In the field of development and JDZ projects, there is now a trend toward the multiplication of articles in the regulatory and legislative parts of the urban planning code and the environment code, in particular in connection with the legal developments described in Chapter 3. The first reached 3,618 pages in 2018, after 1,922 pages in 2002 and 3,219 pages in 2008. The second totaled 3,400 pages in 2018 and totaled 2,754 in 2002 and 2,860 in 200872. Some of these developments can be considered by associations as positive (in particular on environmental protection or consultation) or negative (such as limiting the time limit for appealing against the terms of the consultation). They can also be considered by developers as favorable (such as the recent regulation on “abusive” claims against collective housing permits)73 or unfavorable.

In particular, the multiplication of regulations, which, according to lawyers, is intended to ensure the legal security of operations, is sometimes paradoxically considered as a source of risk for projects by practitioners. The high number of rules may represent constraints (e.g. environmental compensation may lead to additional costs) and more possibilities for associations to appeal in the event of non-compliance by the developer or promoter. Our review of the national and regional press shows that there are quite a number of appeals against projects under Water Act No. 2006-1772 of December 30, 2006. For example, project impact studies are under attack for insufficient studies and compensation for the effects of the project on wetlands. On July 16, 2015, after the appeal of the association Pour les Chambaran sans Center Parc (PCSCP), the Grenoble Administrative Court declared invalid the prefectoral decree allowing the destruction of a wetland in Roybon (Isère) in whose place an 80-ha leisure park was to be built. On January 31, 2017, the Orléans Administrative Court took the same decision concerning a proposed store for a major sports brand after the appeal by the association Pour un site préservé entre Loire et forêt (SPLF 45). The delay in taking a court decision can delay a project by 1 or 2 years. Opportunities related to regulatory change can also be found. The experience of the A65 Langon–Pau highway has benefited ERE (the concessionaire, also a subsidiary of the Eiffage group), which holds the partnership contract with the Brittany–Pays de la Loire HSL, to avoid delaying the construction and commissioning of a project a second time. The environmental debates involved associations that came forward relatively late during the HSL’s public inquiry. The Eiffage group has prepared a very detailed dossier for the CNPN, which enabled it to obtain a favorable opinion as soon as the project was first presented. Compensation reached 950 ha74. Indeed, if the ERE partner could dispose of the land on the right-of-way before the DUP of land development, it also had to have obtained the favorable opinion of the CNPN75 in order to be able to start clearing or start roadworks without risking damaging habitats of protected or emblematic species. CLERE, an ERE subsidiary to carry out the high-speed line, sets up “environmental teams” within its construction site teams. They were responsible for monitoring the impact of roadworks on the functioning of basins that provided habitat for species and the breeding and feeding conditions of these species. A certain pressure was exerted on the project owner who had to anticipate the possible hazards of the project for fauna and flora because it was difficult for him to negotiate additional compensation lands outside the right-of-way76. CLERE chose to take into account the comments of nature protection associations on the presence of species for its studies77. The project owner could incur fines or even a criminal risk if the works generated the presence of prohibited materials in watercourses or if the temporary remediation of the worksites was not carried out in accordance with standards. The CNPN’s favorable opinion in 2012 was an important step in the life of the project for CLERE and ERE. For one of the group’s executives, this opinion described “part of the major risks such as land, land release, and consultation, which are decisive from a financial point of view”78. The consultation allowed the group to become aware of new unforeseen impacts to be

reduced or specific requests from the public. This approach had an additional cost. Since the partnership contract was signed and ERE had to assume the design risks, it had to save money by reducing the height of the alignment in some areas, making shorter structures, and trying to limit the number of road restorations.

4.6. Archeological risk and heritage enhancement The potential presence of archeological sites represents a situation of significant uncertainty for the project owner, who cannot know, in advance, the duration of the excavations (from 6 to 18 months). The project can also be stopped if a major site is discovered.

Figure 4.18. Map of the 50 archeological sites excavated by the LISEA concessionaire of the high-speed line SEA presented during the exhibition on the results of these excavations at the Musée du Grand Pressigny (July 2018) (photo: author) This risk can impact planning for the different stages of a project. A member of COSEA’s project management, the Design–Build consortium of the South Europe Atlantic HSL, indicated that some HSL lots may have been delayed for several months or even 6 months for some. The additional cost can reach 1% to 3% of the project cost for areas where excavations are the longest. If the duration of the excavations delays the commissioning, penalties may be applied to the private partner79. This risk is unpredictable. The project owner must sometimes adapt their work schedule and the progress of the obligation to carry out preventive archeology on the site. In the case of the A65 Langon–Pau highway, 102 km × 150 km were the subject of such archeological research, which required the designer–builder group to reorganize its timetable: the excavations of an area where a

promising excavation was taking place (which, therefore, ran the risk of taking longer than the briefer type of archeological excavation carried out solely for preventive purposes) were postponed by several months, the time required for the excavation. This risk may also apply to development and urban planning projects. For example, near Orléans, the project to transform the Château de la Motte-Sanguin into apartments and a fourstar hotel and the construction of housing in the park stagnated for several years, mainly because of the obligation to carry out excavations amounting to over 800,000 euros for the city. This delay prevented the municipality from quickly finding a new real estate developer after Ogic’s withdrawal80 in 2010. Indeed, one developer had an interest in starting development and construction work soon after the purchase of the property to avoid having to bear the cost of land assets, i.e. assuming the expenses related to the land (taxation, repayment of the loan, and financial expenses) without the prospect of making them profitable by marketing the built property. Another case in point is that of the venues for the 2024 Paris Olympic Games. The specifications for host cities drawn up by the International Olympic Committee stipulate that they must deliver the equipment necessary to host the event, athletes, and the public on time (end of 2023). An event of this type of global importance should not be delayed. However, the Seine-Saint-Denis department, where the vast majority of the facilities will be built, has many historical sites, such as a medieval manor house under the future Marville swimming pool and the Gallo-Roman remains under the future Olympic village in Saint-Denis or under the future media village in Le Bourget. SOLIDEO (Société de livraison des ouvrages olympiques – Society for the Delivery of the Olympics), which is responsible for the delivery of sport venues and the OCOG (Organizing Committees for the Olympic Games) must integrate preventive archeology to avoid any delay due to archeological risk. Excavations can last from a few weeks to several months. No derogations from the law have been adopted (although this may be the case for exceptional projects such as the Olympic Games). Preventive archeological diagnoses are not made immediately, but as the work progresses, which makes the process faster. This practice is also more expensive. This contingency is included in the provisions for archeological risk in the operation balance sheet; these amount to €253 million81. This risk can become an opportunity if the remains discovered are highlighted and presented within a museum, for example, by highlighting the work of the project owner. The Musée du Grand Pressigny (Indre-et-Loire) exhibits prehistoric, Gallo-Roman, and medieval remains discovered during preventive archeological excavations carried out by the Vinci concessionaire for the construction of the South Europe Atlantic HSL82.

Figure 4.19. Highlighting the results of archeological excavations carried out by the LISEA concessionaire along the route of the South Europe Atlantic HSL at the musée du Grand Pressigny in July 2018

4.7. Interface risks These risks are high during project implementation because there are many actors, especially in the case of transport infrastructure projects. This risk is known to the project owner. COSEA, the Design–Build Consortium of the South Europe Atlantic HSL, a subsidiary of the Vinci group, has developed a special method to reduce or even circumvent them. One of Vinci’s interlocutors testifies: “The big problem with this type of project is that there are a lot of interlocutors and actors. So, people take a project at a moment’s notice and they’re going to think, ‘Well, I’ll change it in this way’. Except that they modify it on their own in their own corner and the other actors don’t know about it. To ensure that there is no deadlock or risk that is not seen, or mitigated, we made a first version of our detailed design which was year zero, which included civil engineering but also systems. To validate this, we created 30 km sections, a little less, 20 km in fact. There were 15 lots. All the interlocutors gathered in the same room for two days. The project was run through meter by meter, and everyone had to validate what they saw. There was a report at the end […]. It forced people to prepare, look at, or list action plans for what needed to be changed in terms of design”83. This risk, which is at the heart of the business of concessionaires and partnership contract holders, is limited by the business’ practice, traditional risk analysis, and an adapted work organization. A priori, except in special cases, it generates a less sustainable impact on the project.

Figure 4.20. Management of a business interface. The South Europe Atlantic HSL project in June 2014. The Auxance bridge is finished. Works upstream and downstream of the bridge will be carried out quickly by the roadworkers (photo: author)

4.8. Financial risk Data on the cost and additional costs of development and urban planning projects are very limited. There is no ex-post socio-economic evaluation of these projects, which is the case for transport projects, which must be evaluated between 3 and 5 years after they are commissioned (LOTI assessment84). When these balances exist, there are many financial elements on costs, their evolution, and the rate of return. Financial uncertainty often appears at the beginning of the decision-making process. This uncertainty is not qualified as a risk because financial elements may be lacking to analyze and measure its impacts on the project. All the solutions – direct labor, development concession, partnership contract, phasing, and other technical solutions – have not yet been studied to find the appropriate financial package at the time initial studies are carried out. The financial risk may then appear, as the studies progress and the project is carried out, either because the provision for risks retained was not high enough, or because of the occurrence of unforeseeable events, or because the project owner has difficulty identifying opportunities.

4.8.1. The Perpignan–Figueras HSL: a lack of profitability

Box 4.11. The Perpignan–Figueras HSL The Perpignan–Figueras HSL is 44.4 km long (see the location in Figure 4.1). It offers connections to Madrid and Barcelona in Spain and to Montpellier in France. The line has an 8-km-long tunnel to cross the Pyrenees. It was commissioned in 2009, but the Spanish high-speed section was not commissioned until 2013. The HSL has been the subject of a concession contract held by TP Ferro Concessionaria SA, a Franco-Spanish company. The Perpignan–Figueras HSL concession is still remembered due to the bankruptcy of the TP Ferro Concessionaire. This was due to a desynchronization of the players and the commissioning of the four sections making up the Nîmes (Manduel85)–Barcelona HSL and to differences between forecast and actual traffic (which made it possible to ensure the concession’s commercial revenue by the payment of an infrastructure user charge to the concessionaire by the rail companies). The 44-km Perpignan–Figueras section was granted on February 17, 2004 for 50 years to a Franco–Spanish company set up for the purpose, TP Ferro Concessionaria SA, in which Eiffage and ACS-Dragados (a Spanish public works company) are each 50% shareholders. TP Ferro incurred a debt of €410 million and financed €110 million from its own resources. A grant of €590 million from the European Union, France, and Spain complemented this private funding86. The HSL was delivered on time on February 17, 2009 and commissioned in 2010. Its construction encountered major geological hazards, which delayed the continuation of the tunnel’s construction for several months. The delay was made up by a review of planning and the order of intervention for various trades. There was no significant opposition from residents on either side of the French or Spanish border. The design–build consortium, in charge of the works by the concessionaire, had to complete the line on time; otherwise, it would not receive the money borrowed from the banks to finance the worksite and the TP Ferro Concessionaire would have to pay heavy penalties to the grantor (up to €1 million per day)87 and would not be able to receive the expected commercial revenues on time. The French State launched the Nîmes and Montpellier bypass projects late in the year in the form of a public–private partnership contract awarded to OC’VIA (of the Bouygues group). This section links Montpellier to Paris in less than 3 h. Local opposition was expressed against this project because it crossed vineyards in Lunel and because of its proximity to the village of Mauguio, which led to a very slight shift in the route by 150 m. The construction of this section began at the end of 2013. It was put into service at a reduced speed of 220 km/h in December 2017 for freight and in July 2018 for passengers. A subsequent upgrade of signaling to ERTMS288 would allow traffic at 300 km/h.

The Montpellier–Perpignan section is progressing slowly and in stages. This project includes a mixed freight and passenger line between Saint-Jean-de-Védas and Béziers and a section dedicated solely to passenger traffic between Béziers and Rivesaltes. In December 2013, the Transport Minister, Frédéric Cuvillier, assured that he was relaunching the studies for completion before 203089. The route was approved in August 2018, allowing land to be reserved, studies to continue, and the public inquiry to be considered. Financing for the line is not assured for the moment, and neither is the precise deadline for completion. The Infrastructure Orientation Council of February 2018 considered commissioning at the earliest in 2027 for the Montpellier–Béziers section, but high-speed trains and freight trains bound for Spain have the option of using the conventional line at 160 km/h90. The Figueras–Barcelona section was put into service by ADIF (Administrador de Infraestructuras Ferroviarias – a Spanish rail network operator) in 2013, three years after the opening of the Perpignan–Figueras section. This section was initially the subject of a fierce battle between the Autonomous Community of Catalonia and the Spanish Government in the 1990s. Catalonia wanted the section to be the first to be built in Spain, while the government preferred the first star high-speed line from Madrid, the capital, to Seville (where the 1992 Universal Exhibition was to take place), at equal cost and distance for both projects (Djigo and Masson 2015). The Spanish Government did not consider cross-border high-speed lines to be a priority over the establishment of a national network (Audikana 2015). The Madrid– Pyrénées mountain range section (part of the Figueras–Madrid line) was the second to be built in 2003. This delay is also due to tunnel construction problems in Girona and especially under Barcelona. In addition, the Barcelona Port Authority refused to put the port’s railways at the international gauge for the opening of the cross-border section in 2010. Indeed, the track gauge is wider in Spain. As a result, the link with the port of Barcelona, whose TP Ferro Concessionaire hoped to capture part of the freight traffic, was not completed in time for the date of entry into service of the Perpignan–Figueras HSL granted91. ADIF asked Alstom and two Spanish manufacturers to partially upgrade the 41-km Gerona– Figueras line to European standards with ERTMS signaling and one out of two tracks equipped with a double gauge (standard and Spanish). This conventional link was put into service in December 2010, but only served a small number of trains departing from the port of Barcelona due to the very low throughput that could be expected. The high-speed trains were only able to provide direct links between France and Barcelona as of December 15, 2013, following the opening by ADIF of the missing HSL link between Figueras and Barcelona (equipped with the ERTMS2 system that allows a speed of 300 km/h) three years after the contractual date of entry into service of the Perpignan–Figueras section. These different temporalities, linked to difficult economic contexts, problems of implementation, and consultation between Catalonia and the Spanish Government, have separated the overall implementation of the line into four parts, some of which in France are still not planned to be finished in time – even though it represents a challenge for the highspeed operation of the line.

In addition, overestimated traffic in the project studies compared to actual train traffic contributed to introducing a risk for the concession of the Perpignan–Figueras section. The number of high-speed train journeys actually offered was lower than planned (9 per day). Between 2010 and the end of 2013, only two round trips were made with a terminus in Figueras. At the end of 2013, when the high-speed line opened on the Spanish side, this number reached five round trips, seven for the summer period of 2014, and was reduced to five round trips in September 2014. Traffic on the line reached 360,000 bookings at the beginning of July 2014 (after 6 months of high-speed operation on the Perpignan–Barcelona line). Knowing that there are 350 seats per single-level high-speed train and 516 seats per high-speed Duplex train92, with two round trips per day on single high-speed trains and three round trips per day on duplex high-speed trains in 2014 according to the figures in our possession, there are 4,496 seats offered per day or 877,000 seats offered in 6.5 months’ operation. Out of 877,000 reservations, 360,000 seats show a filling rate of 41%. The filling rate is average compared to other high-speed lines, while the number of trains planned (9) is not offered on the line. In 2019, there are only four round trips per day. The Perpignan–Figueras concession attempted to build its profitability on low initial flows, which by itself is a risk for this type of contract. The latter is instead suitable for large flows that allow rapid profitability for construction companies forced to repay high loans (half a billion euros in this case) and subject to the constraints of their shareholders’ return on investment. The Cour des Comptes (2014, p. 95) considered that the traffic of the Perpignan–Figueras HSL and the other HSLs in service were too low to be profitable. The level of traffic, which generates commercial revenues, is one of the elements of the calculation of the internal profitability93 of transport infrastructure. Lower actual traffic than expected partly explains lower ex-post internal rates of return (IRRs) for several HSLs in service as shown in Table 4.3. Only the Paris–Lyon HSL is an exception.

Table 4.3. Comparison of planned and actual internal rates of return of HSLs in service. Source: Savary G. and Plancher B. (2014). Rapport d’information, no. 4154, Assemblée nationale, p. 193

Mediterranean HSL Rhône-Alpes HSL

Internal rate of return A priori A posteriori 8% 4.1% 10.4% 6.1%

Île-de-France Interconnection HSL North HSL Atlantic HSL Paris–Lyon HSL

10.8% 12.9% 12% 16.5%

6.9% 2.9% 8.5% 15.2%

Figures on the profitability of the Perpignan–Figueras HSL are not available. However, the lower than expected number of HSLs put into service by SNCF and the relatively low number of passengers on the line may imply a lower than expected rate of return. The concessionaire of the Perpignan–Figueras HSL was required to collect toll revenue when the line opened in 2010 in order to repay its loan and balance the concession. This was only the case at the end of 2013. Spain paid compensation of approximately €30 million per year to TP Ferro until January 2013 due to the delay in the construction of the high-speed line on the Spanish side94 (and its negative impact on traffic). The concession and collection of toll revenues have been extended by three years by the French and Spanish governments. In 2013, the concessionaire was only able to charge €300,000 per month for providing train paths to railway operators, which was insufficient to cover the debt burden and operating costs. The concession contract did not protect TP Ferro from the immediate nonimplementation of the connection with the port of Barcelona and the related loss of traffic. The concessionaire had to assume this particular risk95. This includes part of the freight traffic to Barcelona in its traffic forecasts to help balance the concession at the time of the call for tenders. The European Union, France, and Spain, which contributed half of the project’s funding, had an interest in ensuring that the line continued to operate under good conditions. The two states have created a structure co-led by SNCF Réseau and ADIF to replace TP Ferro in the event of failure in 201496. Investment funds specializing in the repurchase of debt from companies in difficulty were interested in 2014 in repurchasing TP Ferro’s debt at a lower value and were expecting the debt to be repurchased at its nominal value by the two States97. It did not have any consequences. It was planned to increase the frequency to nine daily round trips, as planned in the traffic estimates. Attractive pricing could have helped. But customers had to be interested. The success of this operation was based on a more dynamic marketing of trains likely to pass

through the cross-border high-speed line. Despite this, TP Ferro was unable to honor its debt (557.2 million euros) and was put into legal liquidation in September 2016. The new company formed jointly by SNCF Réseau and ADIF has taken over the current management of TP Ferro, the organization, all the staff, and all the activities. Logically, both States should compensate for the concessionaire and take responsibility for debt repayment and operation. These points are the subject of negotiations that remain confidential.

4.8.2. The Grand Paris Express: from additional charges to additional charges… Box 4.12. The Grand Paris Express The Grand Paris Express is a mega-automatic metro project designed to serve the Îlede-France region with 200 km of lines and 68 stations. The project was approved by an agreement between the Île-de-France Regional Council and the State in 2011, after a public debate on two competing projects, led by the region and the departments. The new lines will be connected to the existing metro network. Its implementation is managed by the Société du Grand Paris (SGP), within the framework of an agreement with the organizing authority, Île-de-France Mobilités. It supports a broader economic and social development project in the region, the Saclay Plateau. The completion of lines 14 and 16 has been accelerated to ensure that they are open for the 2024 Olympic Games. Line 15 South is under construction. The other lines are being discussed.

Figure 4.21. Map of the Grand Paris Express (map: L. Cazeaux, MRTE) This example is interesting because it shows an underestimation of costs (which can lead to a financial risk if the project owner is not sure that they can cope with unexpected expenses) (Table 4.4).

Table 4.4. Evolution of the costs of the Grand Paris Express. Source: Cour des Comptes, La Société du Grand Paris, communication to the Finance, General Economy and Budgetary Control Committee of the Assemblée nationale, 2017, p.175 2010 End of Approval of the SGP SGP study in July public discussions supervistory board in March 2017 date on the State 2017 region protocol, 26 January F 2011 Provisional €19,005 €20,543 cost million million 2008 2008 Reason for Extension of increasing line 14 cost toward St. Ouen. €2 billion line 15 east.

€28,931 million 2012

€38,500 million 2012

Increase in construction costs (€2.3 billion) due to further studies. Increase in land acquisition costs (+10%). Increased contributions requested toward the SGP for financing the RER Eole line (+500 million euros) and the purchase of maintenance vehicles (€338 million).

Increase in costs for lines 15 and 16 (more tunneling and increase in civil engineer ing costs). Provis ions for higher risks

The cost of the line rose from €19 billion in 2010 to €38.5 billion in 2017. According to the Cour des Comptes98, the reasons were essentially linked to the inaccuracy of the initial or preliminary project studies, which had to be deepened progressively, which generated additional construction costs, the State’s request to have the Société du Grand Paris (SGP) finance the extension of the Eole RER, line 15 East, and the maintenance vehicles, and the increase in the construction costs of lines 15 and 16.

Figure 4.22. View of the construction site of the Noisy Champs front station where lines 15 and 16 of the Grand Paris Express and RER A will intersect (photo: author)

Figure 4.23. View of the Créteil station construction site on the future line 15 of the Grand Paris Express (photo: author) The Cour des Comptes also points out that the provisions for risks, which make it possible to finance contingencies, were very insufficient in the studies until 2017, which considerably increased the most recent provisional cost to €38.5 billion. Provisions for contingencies are increased by 145% between March and July 2017 (Table 4.5).

Table 4.5. Evolution of provisions for risks in the Grand Paris Express. Source: Cour des comptes, La Société du Grand Paris, Communication to the Committee on Finance, the General Economy and Budgetary Control at the Assemblée nationale, 2017 Target costs March 2013 Provisions ? for risks

Estimations March 2017 €2.85 billion 2012

Re-evaluations Difference in % between July 2017 March and July 2017 €6.99 billion +145% 2012

The provision rate for contingencies and unforeseen events used by the SGP was 20% at the preliminary study stage only. However, for underground projects, several higher risk provision rates should be used. This is a provision rate for identifiable technical risks of at least 30% (preliminary design study) and then at least 15% during the implementation phase and an added 10% for non-technical risk provisions99 and provisions for contingencies and unforeseen events100,101. These are provisions for risks related solely to tunnel construction. It is also necessary to add the risks for the surface part of the lines. Provisions for risks in accordance with professional standards were established by the SGP in 2017 (Audit Committee meeting of June 28, 2017), while three lines were already under construction. These provisions are as follows. At the initial investment decision stage, the provisions for identified risks were between 20% and 30% of the cost, plus 8–12% for contingencies and unforeseen events, for a total of 28– 40% of the provision rate. At the preliminary project stage, the provisions for identified risks were between 17% and 23% and the provisions for contingencies and unforeseen events reached 8–12% of the project cost, i.e. a total provision rate of between 25% and 35%. At the project stage, the provisions for identified risks were between 12% and 20% and the provisions for contingencies and unforeseen events between 8% and 12%, i.e. a total of provisions between 20% and 32%. The Cour des Comptes highlighted this recent alignment of the SGP with professional standards for risk provisions, which increased the estimated cost of the project to €38.5 billion, but also expressed concern about the risk of additional costs linked to the acceleration of some lines for their delivery for the 2024 Paris Olympic Games.

4.8.3. Île Seguin in Boulogne-Billancourt (Île-de-France): the high cost of bearing the cost of land assets In the case of development and urban planning projects, the financial risk may be linked to the cost of a long-term holding of land assets, most often linked to litigation, or to a slower pace of commercialization than expected. In general, these additional costs may be attributable to the local authority, the development SPLs or the developer (bearing the cost of land assets), or the developer alone (slower sales).

Figure 4.24. Work on Île Seguin in March 2016 (photo: author) Bearing the cost of land assets can be significant. The example of Île Seguin in BoulogneBillancourt (see above) clearly shows this. During the 1990s, the SEM Val de Seine Aménagement bought the first piece of land for €43 million. This land was to house the cultural buildings of the Pinault Foundation. The project was delayed during the 2000s because the procedures related to land clearance and demolition of the plant buildings took longer than expected. But above all, the project was the subject of multiple litigations against the PLU until 2018. This plan provided for a high densification of the island, and was refused by local residents and several associations. Generally, the different procedures, the revision of the PLU, the clean-up, and the purchase of the different plots from different owners can take several years. In the meantime, the local authority or the development SPL must bear all the costs associated with the land until it can carry out the planned development operation and resell the land to a developer. To limit this burden, it can build a building in advance and sell it in its future state of completion. As land practices specialist Joseph Comby (2003) points out102, bearing the cost of land assets is justified by the fact that “land is not a homogeneous good but consists of a multitude of parcels with different and, in part, uncertain costs and release times.” […] “This buying has a cost consisting on the one hand of the price in money for the holder and on the other hand of the risk of not carrying out the foreseen urban project costs”. In the case of Île Seguin, due to the delays mentioned above, a long bearing of the cost of land assets for the city of Boulogne-Billancourt amounted to €200 million in 2008103, then to €300 million in 2015 (with the development), while the development SPL Val de Seine Aménagement had a debt of €150 million and an operating deficit of €100 million104 due to the delay in selling the land to builders and project owners. Financial tenure is risky, especially if it lasts a long time (e.g. because of repeated disputes).

“On the other hand, we know that it is the excessively long land holdings that constitute the main risk for a public or private operator and which lead to financial disasters and more or less sophisticated arrangements that are designed to have to buy the land as late as possible, even if it means leaving the owner a part of the promotional benefit”105.

4.9. Are there recurrences in terms of the succession of risks and uncertainties from one project to another? 4.9.1. Transport infrastructure projects Financial uncertainty appears first, before, or during the preliminary studies, regardless of the mode. The main reason is the refusal of local authorities to participate in the financing of the project. Competition from other projects and low profitability or expected traffic are also reasons for the risk of not obtaining public funding quickly and for the subsequent financial equilibrium of the fragile project. The latter risk is highlighted by audits carried out by the Conseil général des Ponts et Chaussées and the Inspectorate General of Finances (Mourra et al 2003), which often rank these projects at the bottom of the list. An intervention by local elected officials can lead to a better ranking, especially if they are very favorable to the project and finance it, as shown by the example of the Brittany–Pays de la Loire HSL. Financial risk can arise at any time during the project decision-making and planning process. It is the result of all the risks that the project owner has not succeeded in integrating into the project through additional studies or project optimization and which must be covered by a provision for exceptional risks. It should be noted that hazards can occur after the DUP, once the project design is theoretically completed. For example, owners may refuse to sell their land at the price set by the Domains, which obliges the project owner to resort to expropriation. The procedure is longer than an amicable purchase and can be more expensive. The project owner, particularly a private company, is required to respect its work and commissioning schedule in order to regularly receive the money borrowed from banks – which generally represents 80% of the amount contributed by the private company106 – or the rent from public authorities in the event of a partnership contract. It may agree to buy more expensive land to speed up its availability and not to delay the work too much. It is sufficient if a few parcels well placed on the route are not available at the right time to possibly call into question the date of entry into service and the collection of toll revenue by the concessionaire or rent by the holder of the partnership contract. Political risk, often associated with financial risk, also appears quite early in the genesis of projects of all types. It results in a refusal by local elected officials to finance the project for the reasons mentioned above, a disagreement with the State or the project owner on the route or technical characteristics. Political risk also appears later in the decision-making process, in particular as long as the financing agreement is not signed between the State, the project owner, and local authorities, who do not hesitate to exchange their sometimes high financial contribution for the satisfaction of a particular request. The example of the Brittany region,

which in 2008 required that the work on the Brittany–Pays de la Loire HSL begin in 2010 to agree to sign the agreement, is eloquent. Social risk generally manifests itself later than financial and political risks, a few years before the public inquiry (example of the controversy of the residents of Sarthossa over the Brittany–Pays de la Loire HSL) or during the investigation (case of the Sepanso complaint and then the appeal to the State Council against the A65 Langon–Pau highway project). This highlights the fact that the decision-making process remains relatively focused on experts, elected officials, and the State at the time of the preliminary studies. The recent construction of several high-speed line and highway projects, which have been included in the national transport scheme for several decades and have not benefited from public debate for this reason, may explain the late formalization of any controversies (Brittany–Pays de la Loire HSL, South Europe Atlantic HSL, Mediterranean HSL). The Sepanso association informed us that the impossibility of expressing an opinion on the A65 Langon–Pau highway before the public inquiry generated frustration and a feeling that there was no dialog on the environmental issue. The same can be said for the Mediterranean HSL during the 1990s. Local elected officials and residents strongly regretted the lack of consultation for the elaboration of the first versions of the project, which crossed vineyards, urbanized areas, and then numerous flood areas of the Rhône. These local residents and elected officials made strong representations to the project owner, who had to commission a panel of experts to re-examine the project. The Poitou-Charentes Nature association appealed to the State Council against the DUP of the South Europe Atlantic HSL after its request for dialog on compensation, and the way it was determined was refused. Social risk does not manifest itself differently between HSL and highway projects. Residents can be just as virulent in one case as in the other as long as their living environment or habits are affected. Contrary to what one might think, nature conservation associations are as vigilant about the effects on the territory of an HSL project, which does not emit CO2 or fine particles, as a highway project. In general, they take the position that existing infrastructure should be adapted to the growth of flows rather than building new infrastructure that consumes natural space and disrupts natural species. The last recourse in the State Council for environmental reasons concerned a high-speed line (South Europe Atlantic) and a highway (A65 Langon–Pau). The case studies also show that delays can occur at any time during the project. They are the result of risks that the project owner could not identify early enough or whose impact they could not anticipate or reduce through project optimization. These delays can be observed from the preliminary studies (disagreement of local elected officials on the route of the Brittany–Pays de la Loire HSL) or after the DUP (triple passage of the A65 Langon–Pau highway project before the CNPN). Institutional risk remains quite rare. It is, therefore, difficult to conclude that there is a specific period where it appears in the decision-making process.

4.9.2. Development and urban planning projects The case studies show that two risks can occur at first: environmental and social risks, the former often motivating the latter. As with high-speed line and highway projects, the environmental risk of the project appears very frequently in the case of development projects and urban planning operations. The impacts concern the pollution of the subsoil by the project (waste treatment and storage center in Nonant-le-Pin, Roybon), the health risk in the event of construction on an already polluted former industrial site, and the use of natural land on the periphery. The projects concerned may be located in the urban periphery or in the center. The environmental risk of the project also often catalyzes a social risk, which can result in site occupation and very often in legal action. The occupation of sites is observed in particular in the case of natural land that will be urbanized (subdivision, mall, etc.). The appeal may be ex gratia or contentious and led by an association or local residents against the PLU or against a decision (prefectoral decree, decision of the administrative court, etc.). This risk has become more and more frequent over the past 10 years in the case of development projects and urban planning projects if there is opposition from the local environment107. This trend is consistent with almost systematic opposition that can be noted in the case of major transport infrastructure. This risk represents a major challenge for developers, promoters, and local authorities because the project will be frozen for several years during the recourse. The risk of delay is a consequence of previous risks, such as financial risk. It is systematic in the case of disputed projects. Financial risk often arises in the event of litigation or difficulties in marketing the project. Its importance is linked to a delay in the project, bearing the cost of land assets or a slower pace of commercialization than expected. Phasing can be a solution to limit financial risk. In the case of transport infrastructure, phasing makes it possible to spread the (very high) construction costs over several years or decades. The disadvantage is that the infrastructure cannot be operated with its own technical characteristics and/or may lose profitability, as shown by the case of the Perpignan–Figueras HSL, which for a long time remained an isolated high-speed section between conventional sections. In the case of urban projects, phasing is also a solution adopted in the event of marketing difficulties. This may be the phasing of the land development. In this case, the local authority may choose to have only part of the JDZ developed and wait for another part by bearing the cost of land assets. It then only sells the land to be developed to a development SPL or a private developer when the economic situation is more favorable. Construction of the various parts of the JDZ then occurs in stages over several years. This may be the marketing phase, which is carried out by the proponent. The latter may decide to slow down the pace of construction and build and market the buildings in stages. It then bears the cost of land assets108. Political risk is still quite rare. Few projects are involved. Development and urban planning projects are generally carried out by a single local authority, while linear transport projects involve several dozens, which must agree on a route and on financing. The political risk of disagreement or opposition is, therefore, lower and less frequent in the case of urban projects.

It is found particularly in large communities (as in the case of the Arena in Orléans) or in municipalities with high political stakes (as in Boulogne-Billancourt) where strong opposition may more easily exist than in rural or smaller municipalities. Institutional risk also remains relatively rare for the urban projects studied, as in the case of the highway and high-speed line projects.

4.10. Conclusion: behind the risk, the actors Political and social risks do not exist without the actors who may interact to create the event that may constitute a hazard for the project, such as refusal to co-finance a highway, a negative vote at a council meeting, a sit-in, or a legal recourse. The project risk for archeology and the project risk for the environment are risks that stakeholders can address as a site defense association, as an expert or as a project owner (to limit the impact of the project and to carry out studies and mandatory protection or compensation measures). The current high level of investment by residents and associations in the design and implementation of infrastructure, development, and urban planning projects means that such issues are likely to be considered as a risk if the project owner has not carried out sufficiently detailed studies and presented protection or compensation measures considered sufficient by the associations, and/or if the associations and residents (or even elected officials) have decided to take advantage of one of these risks to take action against the project, and obtain its modification, relocation, or cancelation. Regulatory amendments are also an issue that associations and residents can take up when they consider that the project owner has not sufficiently detailed studies with regard to the latest legal obligations by forgetting this protected species or underestimating this impact of the project on groundwater or this pollution. This risk is quite frequent and results in a recourse (i.e. a social risk for the project owner). Elected officials opposed to a project can address the risk of delaying a project (very costly) and the financial risk it may represent for public finances, particularly in the event of political disputes within the existing team. Elected officials can publicize these risks to alert voters and try to have the project modified, postponed, moved, or canceled. Actors, especially local ones, are therefore very present in the construction of risk. Their acception depends on their acceptability threshold of a risk that the project may represent for the environment, old sites, or public finances. The whole question for the project owner is to know where this threshold is located and how to move it. However, we can see that local actors make extensive use of risk (of all kinds) to assert their interests. This point is developed in the next chapter. 1 We use RFF for events occurring before January 1, 2015 and SNCF Réseau after that date, which corresponds to the change in the name and scope of the establishment. 2 Source: RFF interview, January 9, 2014.

3 Source: RFF interview, February 4, 2014. 4 In addition, the State (AFITF, €1,254.3 million), the concessionaire (€5.8 billion), and RFF (€852 million) have contributed. Amounts in euros as valued July, 2009 (source: http://www.afitf.net/lgv-sud-europe-atlantique-sea-a58.html). 5 Source: RFF interview, April 9, 2014. 6 Source: Conseil économique et social des Pays de la Loire, Conseil économique et social de Bretagne, sessions 7 and 14 February 2005. 7 Alain Juppé was Minister of Foreign and European Affairs from 1993 to 1995 before becoming Prime Minister of France and in 1997 deputy of Gironde (the department that the South Europe Atlantic HSL serves). 8 J.-P. Raffarin was President of the Poitou-Charentes region from 1988 to 2002 and then Prime Minister of France. 9 Source: L’Express, available: http://www.lexpress.fr/region/le-tgv-en-bretagne-une-silongue-attente_573912.html, September 23, 2008. 10 Source: RFF interview, February 9, 2014. 11 It is worth noting on this occasion the agreement that emerged between the two Regional Presidents elected in 2004 who were of the same political affiliation (Socialist Party). 12 Source: RFF interview, April 9, 2014. 13 Source: http://www.lgv-bpl.org/mise-en-oeuvre-projet/financement-lgv. 14 Source: RFF interview, April 9, 2014. 15 Both solutions had the same net present value of costs for RFF pursuant to Article 4 of RFF’s Articles of Association. The question of commercial risk, therefore, separated them. 16 The interface risk arises if the trades do not succeed each other according to the schedule set by the manufacturer. This can cause a delay in the progress of the work. 17 Source: Brittany Region, Regional Council Meeting, May 2011, Ligne à grande vitesse Bretagne Pays de la Loire, virgule de Sablé, Financing Agreements. 18 Source: Association de défense de l’île Arrault website, available: http://ilearrault.blogspot.com/2010/10/, October 2010 and Marois M., “Aréna, après l’île Arrault, le site Famar ne convainc pas les riverains”, République du Centre, January 21, 2011. 19 Source: Minutes of the General Assembly of the Association de défense de l’île Arrault of December 18, 2015, available: http://ilearrault.blogspot.com/.

20 Mayor of Orléans from 2001 to 2015, member of the UMP party (right wing). 21 President of Orléans Metropolis from 2001 to 2017, member of the UMP and then of the Republicans (right wing). 22 Source: Eschapasse B., “Aréna, le bras de fer : Contesté de toutes parts, le projet de grand stade a du plomb dans l’aile”, Le Point, available: https://www.lepoint.fr/villes/arena-lebras-de-fer-13-06-2013-1686637_27.php, June 13, 2013. 23 Source: ibid. 24 SDRIF: schéma directeur de la région Île-de-France (Guiding scheme for the Île-deFrance region). 25 Source: Commission d’enquête, Single Public Environmental Inquiry into the construction and operation of a logistics warehouse in the Fouju commune, August 16 to September 17, 2017, Seine et Marne department, 2017. 26 Source: Decision of the Departmental Council of November 18, 2016 on the “Deviation and recalibration of departmental road 57 in the territories of the municipalities of Crisenoy and Fouju. Dossier for taking into account amendments”, no. CD-2016/11/183/06. 27 Source: Neuville de H., “L’urbanisme francilien en folie”, Challenges, no. 585, vol. 32, November 8, 2018. 28 Source: Espelia company interview on public policy consulting (development, urban planning, etc.), June 2017. 29 Source: interview within a nature protection association, contact person wishing to remain anonymous to the association, January 2014. 30 Source: ERE company interview, November 19, 2013. 31 Deputies, senators, presidents of the General Councils, and mayors of Bordeaux, Pau, and Dax. Some of these elected officials also have a national scope: Alain Juppé and François Bayrou. 32 Source: letter from A. Rousset, President of the Aquitaine Regional Council, to the Prime Minister, April 5, 2008. 33 Source: ERE company interview, November 19, 2013. 34 Source: Kempf H., “Feu vert pour l’A 65 mais stop aux contournements de Toulouse et Bordeaux”, Le Monde, June 6, 2008. 35 According to Sepanso, the amount requested by the concessionaire was calculated in relation to the delay attributable to the triple passage in face of the CNPN and the delay it

reportedly experienced in expropriating owners disappointed by the price level offered. The concessionaire did not confirm this point. 36 Source: Préfecture de l’Orne, Arrêté de refus d’autorisation, commune de Nonant-le-Pin, société GDE, January 13, 2010, no. 1122-10-20004. 37 Source: Department of the Orne, Classified installation for the protection of the environment, Joint public enquiries report on the requests of the GDE company to operate a final waste storage center, and a sorting center with public utility easements on the “Plessis” site in Nonant-le-Pin 61240, April 19, 2007. 38 Articles L 515-8 to L 515-11 of the urban planning code. 39 Source: Department of the Orne, Classified installation for the protection of the environment, Joint public enquiries report on the requests of the company GDE to operate a final waste storage center and a sorting center with public utility easements on the “Plessis” site in Nonant-le-Pin 61240, April 19, 2007. 40 Source: Préfecture de l’Orne, Arrêté de refus d’autorisation, commune de Nonant-le-Pin, société GDE, January 13, 2010, no. 1122-10-20004. 41 Source: ibid. 42 Source: ibid. 43 Source: ibid. 44 Source: Bretizel de P., “Vulnérabilité des eaux souterraines dans le secteur du Plessis”, Commune de Nonant-le-Pin, no. 61, 10, March 2013. 45 Source: http://www.sauvegardedesterresdelevage.com/les-risques/quels-risques/. 46 Source: http://www.sauvegardedesterresdelevage.com/la-cour-dappel-confirme-lexpertisedes-causes-de-la-pollution/. 47 Source: ADEME: Agence de l’environnement et de la maitrise de l’énergie (French Agency of the Environment and the Control of Energy), available: http://www.paysdelaloire.ademe.fr/domaines-dintervention/sites-pollues-et-sols/exemplessuivre. 48 Source: “Rezé, confusions à confluent”, Presse Océan, online, available: https://www.presseocean.fr/actualite/reze-confusions-a-confluent-10-05-2013-64604, May 10, 2013. 49 Source: interview with Luigi Di Bobbio, Professor of Political Science, University of Turin, July 2015. 50 Source: ibid.

51 Source: ibid. 52 Source: ibid. 53 Source: letter from France Nature Environnement and Frapna to the Prime Minister dated October 18, 2013 against the Decree of August 23, 2013 declaring the work necessary to make the access route to the Franco-Italian tunnel of the Lyon–Turin rail link to be of public utility and urgency. 54 Source: website of the Collectif contre le Lyon–Turin, available: http://www.sanstransition-magazine.info/economie/daniel-ibanez-collectif-des-opposants-au-lyon-turin-laquestion-de-lutilite-du-projet, consulté le janvier 10, 2018. 55 Source: interview with the association Collectif contre le Lyon–Turin, April 2015. 56 This is a measure of the profitability of an investment. If the net present value is positive, the investment made in the project can be considered profitable and can be retained among other projects. 57 Source: interview with the association Collectif contre le Lyon–Turin, April 2015. 58 Source: http://notav-savoie.overblog.com/pages/150_Raisons_contre_le_Lyon_Turin_1_a_50_traduites-5574009.html. 59 This tunnel is part of the future tunnel that has already been started. 60 Source: http://www.transalpine.com/breves/le-cout-dun-blocage-du-lyon-turin-entre-28et-4-milliards-deu. 61 Source: Pinault F., “Île Seguin, je renonce”, Le Monde, available: https://www.lemonde.fr/idees/article/2005/05/10/ile-seguin-je-renonce-par-francoispinault_647464_3232.html, May 10, 2005. 62 Source: “L’île Seguin désespère Billancourt”, Le Monde, available: https://www.lemonde.fr/culture/article/2008/01/26/l-ile-seguin-desesperebillancourt_1003954_3246.html, January 26, 2008. 63 Source: “Île Seguin : des voix refusent le ‘bétonnage’”, Le Parisien, May 23, 2011. 64 Source: ibid. 65 Source: http://cergy-pontoise.tribunal-administratif.fr/A-savoir/Communiques/Ile-Seguinla-deliberation-du-16-juin-2011-approuvant-la-revision-simplifiee-du-PLU-de-BoulogneBillancourt-relative-a-son-amenagement-est-annulee. 66 Source: ibid. 67 Ndla: Law No. 2010-597 of June 3, 2010 relative to Greater Paris.

68 Nll: loi SRU, Solidarité et renouvellement urbain (Law No. 2000-1208 of December 13, 2000 on urban solidarity and renewal). 69 Source: Kindermans M., “Île Seguin : la mue des ex-terrains Renault dans l’impasse”, Les Echos, available: https://www.lesechos.fr/10/02/2016/LesEchos/22126-351-ECH_ileseguin---la-mue-des-ex-terrains-renault-dans-l-impasse.htm, February 10, 2016. 70 Source: “Boulogne : les constructions sur l’île Seguin ne doivent pas dépasser 50 mètres”, Le Parisien, available: http://www.leparisien.fr/boulogne-billancourt-92100/boulogne-lesconstructions-sur-l-ile-seguin-ne-doivent-pas-depasser-50-metres-25-09-20155126253.php, September 5, 2015. 71 Source: interview with A’liénor from January 22, 2014. 72 The reference code is the one published by Dalloz. 73 Act No. 2018-1021 of November 23, 2018 on the development of housing, development and digital technology (ELAN law). This law, among other topics, shortens the time limit for proceedings from 24 to 10 months for “abusive” claims against collective housing permits and increases the penalties for such claims. These are actions considered “abusive” because they aim to seek compensation from the promoters in fine, by blocking transactions. 74 Source: GIE CLERE interview, January 17, 2014. 75 The flora committee delivered a favorable opinion on January 7, 2012 and the fauna committee on February 6, 2012. Source: http://www.eib.org/attachments/press/dpbretagne-a-grande-vitesse-sept-2012.pdf. 76 Source: GIE CLERE interview, January 17, 2014. 77 Source: ibid. 78 Source: ibid. 79 Source: Vinci interview, March 31, 2014. 80 Source: Jacques A., “Monopoly sur la ville”, Le Point, online, available: https://www.lepoint.fr/villes/monopoly-sur-la-ville-18-11-2010-1266839_27.php, November 18, 2010. 81 Source: interview with Plaine Saint Denis town hall, June 2018. 82 Source: Kindermans M., “JO 2024 : Comment parer au risque archéologique”, Les Echos, online, available: https://www.lesechos.fr/04/07/2018/lesechos.fr/0301810367030_jo2024---comment-parer-au-risque-archeologique.htm, July 4, 2018. 83 Source: Vinci interview, March 31, 2014.

84 These reports were introduced by the LOTI (Loi d’orientation sur les transports intérieurs No. 82-1153 of December 30, 1982). 85 Current completion of the Mediterranean HSL. The Manduel–Perpignan route is covered on the classic line. 86 Source: Beideler J., Francqueville L., “Ligne à Grande Vitesse : Le Perpignan-Figueras, bon pour le service”, Le Moniteur, available: http://www.lemoniteur.fr/181chantiers/article/actualite/600851-ligne-a-grande-vitesse-le-perpignan-figueras-bon-pourle-service, February 16, 2009. 87 Source: Eiffage interview, November 22, 2013. 88 European Rail Traffic Monitoring System. This system harmonizes signaling on the European network and makes it possible to manage train spacing. 89 Source: “LGV Montpellier-Perpignan, c’est reparti”, Midi Libre, available: http://www.midilibre.fr/2014/01/29/lgv-c-est-reparti,815193.php, January 29, 2014. 90 Source: Genevois R., Picquand J.-L., “Le développement du trafic de fret sur la ligne nouvelle Perpignan–Figueras, Conseil Général de l’Environnement et du Développement Durable”, report No. 007290-01, 2011. 91 Source: Eiffage interview, November 22, 2013. 92 Source: http://www.lmm.jussieu.fr/~lagree/DIVERS/klasse_de_mer/a_inklure/tanguyTGV/tgv.html 93 For a definition of internal profitability: Faivre d’Arcier B., Bonnafous A., Marlot G., Péguy P.-Y., Conditions et pertinence du financement des infrastructures autoroutières au niveau régional – les mécanismes de financement des projets et les variables clés de la rentabilité des investissements. First stage report, Research report, 2001, halshs00115616. 94 Source: lettre professionnelle Mobilettre, available: http://www.mobilettre.com/perpignanfigueras-quelle-solution-pour-tp-ferro/, December 8, 2013. 95 Source: Eiffage interview, November 22, 2013. 96 Source: Fressoz M., “Les TGV France-Espagne montent en puissance mais seulement pour l’été”, Mobilicités, available: http://www.mobilicites.com/011-2947-Les-TGVFrance-Espagne-montent-en-puissance-mais-seulement-pour-l-ete, July 7, 2014. 97 Source: l’Expansion, February 11, 2014. 98 Source: Cour des comptes, Communication to the Committee on Finance, the General Economy and Budgetary Control at the Assemblée nationale, La Société du Grand Paris, 2017.

99 Organizational, program, consultation, regulatory, financial, land, risks, and so on. 100 These hazards and unforeseen events concern events that cannot be identified in advance (legal evolution, geological problem, project phasing, etc.). 101 Source: CETU, Document d’information sur le prix des tunnels, April 2016. 102 Source: Comby J., Dictionnaire foncier, online, available: http://www.combyfoncier.com/, 2003. 103 Source: “L’île Seguin désespère Billancourt”, Le Monde, available: http://www.lemonde.fr/culture/article/2008/01/26/l-ile-seguin-desesperebillancourt_1003954_3246.html, January 26, 2008. 104 Source: Kindermans M., “Île Seguin : la mue des ex-terrains Renault dans l’impasse”, Les Echos, available: https://www.lesechos.fr/10/02/2016/LesEchos/22126-351-ECH_ileseguin---la-mue-des-ex-terrains-renault-dans-l-impasse.htm, February 10, 2016. 105 Source: Comby J., Dictionnaire foncier, online, available: http://www.combyfoncier.com/, 2003. 106 Source: Eiffage interview, November 22, 2013. 107 Source: SPL planning interview, Territoires Publics Rennes, November 23, 2018; Mairie de Vannes interview, January 2, 2019; and SPL Nantes Métropole Aménagement interview, January 2, 2019. 108 Source: ibid.

5 Addressing or Taking Advantage of Risks Allows Actors to Build Power Relationships 5.1. Introduction This chapter focuses on how actors (public and private project owners, public authorities, residents, elected officials, associations, etc.) take advantage of or treat risk in the project decision-making process to promote their interests. Uncertainty can take three nuanced forms, according to the research carried out in the Sociology of Organizations (Crozier and Friedberg 1977) which we will develop. These forms of uncertainties may arise at the origin of risks. – There are areas of uncertainty (events or hazards) identified and addressed (as far as possible) by actors through procedures, methods, or any other informal means. For example, project owners produce an impact study, a socio-economic assessment, or a preliminary project and have risk matrices that allow them to address the areas of uncertainty specific to the project (environment, financing, etc.) and, as far as possible, the uncertainty of its acceptability. Associations can also have counter-expertise carried out. – Areas of uncertainty can be highlighted and used by stakeholders to advance their interests. For example, associations may identify an environmental, archeological, or social territorial problem related to the project that the project owner has not identified or on which studies are incomplete. This is an area of uncertainty. This problem can be put at risk by associations through additional studies. Associations can then take advantage of this risk to request protective or compensatory measures to develop or cancel the project. – There are unpredictable actor behaviors. For example, elected officials or associations may create uncertainty and risk through litigation or site blockage and take advantage of this uncertainty or risk to obtain environmental or archeological protection measures or to develop or cancel the project. In general, stakeholders may, therefore, seek to anticipate or take advantage of risk (unpredictable behavior, use of areas of uncertainty, and risk construction) to assert their interests. Logically, appropriating the risk (through its treatment or exploitation) also allows actors to identify opportunities. The actors can, therefore, also play with the risk. This other aspect is present in the practices that are developed in this chapter. A Sociology of Organizations develops the second theoretical aspect useful for our analysis. These are the power relationships that actors can establish between themselves by controlling or exploiting uncertainty and risk (Crozier and Friedberg 1977). These power relationships

mean that some actors can influence the decision-making process and the process of project design and implementation more than others at certain times. For example, a legal action launched by an association on the grounds that the project threatens the quality of groundwater may block a project for years. In some cases, the deepening of environmental studies may allow the project owner to limit the challenge and social risk. This chapter first develops these theoretical approaches to the Sociology of Organizations. It then explains, based on the case studies in Chapter 4 and the legal framework for taking risk into account in assessment, consultation, and financing practices set out in Chapter 3, the formal and informal practices of actors to deal with or benefit from risk and the power relationships they allow.

5.2. Mastering and using areas of uncertainty in the Sociology of Organizations The Sociology of Organization includes two theoretical subsets that are of interest to our research: power relations and the relationship between power control and control or use of areas of uncertainty.

5.2.1. From the 2000s onward, research has shown that conflict can be seen as an opportunity and can reveal new uncertainties Conflict is a notion linked to the notion of risk. Indeed, the identification of risks can lead to the emergence of conflicts of interest. The definition of risks, risk thresholds, assessment procedures, and so on can also lead to different positions and conflicts. Conflict is increasingly seen as a dimension of democracy (Gualini 2015), knowing that democracy has been conceived as opposed to conflict. Conflict can be distinguished from violence and “restore an agonistic sense to democracy: a public space where the very possibility of conflict must be maintained” (Bentouhami and Miqueu 2010). Conflicts can give rise to new ideas, opportunities, and solutions, especially for planning. Gualini (2015, p. 8) notes that conflict can be considered as a “potential resource for change and social innovation, if it is part of a deliberative and participatory process, of which the planner is the facilitator”. In terms of planning, this can possibly take into account data not processed by experts or study options not considered.

5.2.2. The role of power relationships The democratic process implies that actors are free and equal in theory. The Sociology of Organizations also shows that there are power relations which create inequalities between actors. A distinction must be made between a representative democracy, in which decisions are made by elected citizens’ representatives, and a participatory and deliberative democracy. The participatory and deliberative model of democracy is based on the idea that political

decisions must be taken “through a deliberative process between free and equal citizens, equipped with rational argumentation and adequate means of communication”. This implies that pluralism and the existence of different conceptions of good – including their conflict potential – are a prerequisite that must be accepted. “Through deliberation, it is possible to reach forms of agreement that can satisfy rationality – understood as the defense of liberal rights – and democratic legitimacy represented as popular sovereignty” (Gualini 2015). However, if actors are free and equal, there are, as the literature points out, “de facto inequalities between individuals and social groups, caught in class, gender, and race relations characterized by an unequal distribution of resources and power” (Rui 2013). Power relations are based on interactions between reciprocal and unbalanced actors, which M. Crozier and E. Friedberg define in L’acteur et le système (1977) as follows. “Power is defined as a ‘relationship of exchange, therefore reciprocal, but where the terms of exchange are more favorable to one of the parties involved. It is a balance of power, from which one can benefit more than the other, but also where one is never totally powerless against the other’. In the latter case, the impoverished protagonist becomes an object” (p. 69). In these power relations, there are dominant and dominated actors from the moment when everyone still has something to negotiate. The authors believe that power is at the heart of collective action. For them, there are no fully regulated or controlled social systems. The individual or collective actors who compose them are full-fledged actors who, despite many constraints, have “a margin of freedom that they use strategically in their interactions with others”.

5.2.3. The relationship between risk, uncertainty, and the interplay of actors According to Callon et al. (2011), controversy can produce uncertainties. Controversies, even conflict, are frequent, both in the design and implementation of development projects and in infrastructure or urban planning projects. The examples developed in Chapter 4 show this. Controversy produces technical and social spillovers, which “highlight unforeseen effects, raise unexpected problems. While everyone, including specialists, believed that they had properly framed the proposed solutions, believed that they had established robust knowledge and skills and were clearly convinced that they had identified the groups concerned and their expectations, confusing events were occurring” (p. 50). Uncertainties may arise from a lack of public funds, the participation of new actors, and so on. The controversy “makes the uncertainties and therefore the new avenues of research to be explored perceptible” (p. 54). Controversy, conflict, and power relations can arise at any time from a decision-making process that may have seemed stabilized and caused uncertainty. Michel Crozier and Erhard Friedberg (1977) link the control of power with the control of areas of uncertainty.

“The structures and rules governing the official functioning of an organization determine where power relations can develop. By defining sectors where action is more predictable than in others, by setting up processes that are more or less easy to control, they create or circumscribe areas of organizational uncertainty that individuals or groups will naturally try to control in order to exploit them in the pursuit of their own strategies and around which power relations will therefore be created. (….). The more crucial the area of uncertainty controlled by an individual or group is to the success of the organization, the more power it will have” (Crozier and Friedberg 1977, p. 79). An individual’s power, therefore, seems to depend on the unpredictability of their behavior: the less regulated an individual is, the less predictable they will be and the more power they will have. The assets, resources, and strengths of each of the parties involved form the basis of their power and will determine the outcome of a power relationship. Each actor has a margin of freedom and negotiation, which can be a source of uncertainty for partners and opponents due to the unpredictable nature of the actions related to this margin of freedom. The latter allows the actor to have power over the other actors (Crozier and Friedberg 1977, p. 91). The controversy and conflict surrounding projects illustrate this well since an association or elected officials may, for example, decide to take legal action, on the grounds that the project presents a risk to the environment, without having given any warning to the project owner. This makes them dominant because it allows them to block the project for the duration of the procedure. In summary, the Sociology of Organizations shows that: – power relations can exist in a decision-making process that is based on citizen participation; – there are areas of uncertainty that can be used by actors to build power relations; – actors can develop unpredictable behaviors to create doubt and uncertainty among other actors; – actors can also define and control areas of uncertainty through procedures, methods, or various means.

Figure 5.1. Building power relationships in project planning and management

5.3. Addressing risk and areas of uncertainty to establish power relationships The purpose of the methods, procedures, and standards is to identify the potential risks of the project (risks to the environment, financial risk, etc.) in order to avoid delays, additional costs, or the risk of litigation by the public or elected officials. Studies can be quite sophisticated and are increasingly territorialized. The purpose of these tools is to enable the project owner (public or private) to assert his or her interests and achieve his or her objectives as a developer, promoter or builder and operator of a transport infrastructure, and thus to manage the process.

5.3.1. Formalized anticipation of uncertainties and risks seems to have become a key practice This does not mean that project owners did not anticipate the progress of projects during the 1970s or 1980s. However, it can be seen that the methods currently used (context analysis developed by SNCF Réseau, risk analysis, continuous consultation, environmental assessment, socio-economic assessment, etc.) adopt an identical intellectual approach to projects based on anticipating uncertainty and risks. The context analysis allows SNCF Réseau to locally identify the elected officials, farmers, and local actors on whom it may be able to rely and those who are inconvenienced or opposed to the project and who could later create controversy and then a social risk. It also makes it possible to identify local problems that may impact the project later on (frequent flooding, difficult geology, etc.). The environmental assessment makes it possible, with a very detailed impact study prepared in collaboration with local associations, to limit the uncertainty of the project’s passage before the CNPN1 or recourse to the administrative court against a DUP in the case of development and urban planning projects. A well-assembled file and well-calculated

compensations make it easier to get past this point2. The risk analysis conducted leading up to the commissioning of a project by the public or private project owner or by a development SPL or a private developer makes it possible to identify whether an uncertainty can be qualified as a risk and to consider a treatment solution or a provision for risk.

5.3.2. The method for socio-economically evaluating major transport projects is still more territorialized Two points reveal the territorialization of the multi-criteria analysis for large infrastructure projects. This approach allows the public project owner to make the decision-making process less “top-down”. It has taken into account more territorial characteristics since the circular of December 9, 2008 of the Ministry of Ecology on the establishment of a quality charter for evaluation. It is based on a comparison of the social (employment, vulnerable groups, accessibility, and social diversity), environmental (climate, pollution, and noise), and economic (impacts on households and businesses, cost, and competitiveness) impacts for each variant of a project. It also integrates new evaluation criteria as the consultation progresses. The project owner can thus take into account, after analysis, the issues raised by the local environment. Socioeconomic assessment can thus be adapted to the flexible nature of the decision-making process and the multiplicity of actors. Analysis of the risks generated by the project for each of the criteria must now have as much significance as the only quantified result of the cost–benefit calculation in the decisionmaking process. In this design, the multi-criteria analysis is considered more accessible to the public, who may have complained during previous consultations about the opacity of the studies. However, the use of multi-criteria analysis is limited because there is no precise evaluation method for all the criteria provided for in the circular of December 9, 2008 and for all the problems that can be raised by the local environment, sometimes for the first time.

5.3.3. The integrated study-concertation procedure is marked by benchmarks that can facilitate the decision-making process of transport infrastructure for the project owner The study (preliminary studies, APS, and APD) and consultation procedures determine the phases of the decision-making process for major infrastructure projects. These phases are important to “secure” the decision-making process. Each phase ends with a ministerial decision that formalizes the end of one phase and the beginning of the next one. This explains why local elected officials who are in favor of a project tend to want to speed up the transition from one stage to the next. A project that is well advanced is more likely to obtain public funding than a project that takes much longer to decide. A rapid decision-

making process can also help to limit the cost of the project. Moreover, this phasing is useful to the State in order to gradually legitimize the general benefit of the project. The consultation process, which begins with preliminary studies, public debate, and then the refinement of studies and public inquiry, must make it possible to involve the local community in the project and take into account requests, as much as the project’s optimization allows. Continuous consultation and the presence of territorial leaders gradually make it possible to respond to a certain number of requests and to remove fears or demands. However, this does not rule out the possibility that discontent may persist and reappear later. In general, it is noted that persistent dissatisfaction is the subject of a subsequent amicable settlement between the local resident or farmer and the project owner. A project owner wishing to remain anonymous testified3: “For hard cases, the law was respected. But there are cases where the way in which the damage paid to certain farmers has been slightly increased. Because there is general law and there are special cases. So we had a few cases that were rather blocked. We also had to deal with the town halls, one particular town hall, on the southern part of the route, made an overbid, knowing that it was in a location that was key, strategic, for the development of the project. It made a higher bid, to which we did not give in completely, but we had to do a bit more”. Dissatisfactions that turn into controversy or opposition to the project for substantive reasons related to the environment or transport policy cannot generally be solved through the traditional consultation procedure. Phasing also marks the irreversibility of each step of the decision-making process. It seems that the two-tier transport project planning and design is taking shape. They are intertwined throughout the genesis of the project. The first scale is the State scale. It concerns the project’s route corridor. It traditionally proceeds in very distinct stages. The ministerial decision that concludes each stage of the study gradually tightens the width of the route corridors and the number of variants. The second scale is that of the project management. It is punctuated by ministerial decisions, but unlike state planning, it remains continuous and flexible. Consultation with the local community continues between each phase. It makes it possible to gradually adjust the project’s route and then optimize it according to local requests that can be satisfied to arrive at a project that is almost definitive at the DUP and can be transposed into local planning documents. These practices (consultation procedures, more detailed environmental and socio-economic studies formalized by the texts; risk matrix, context analysis, and continuous consultation by the project owner) do not necessarily make it possible to limit all risks. Let us take the example of a social risk. Context analysis and consultation enable the project owner to be aware of any dissatisfied residents. But it does not make it possible to know in advance whether this unease will then translate into a proven social risk such as obstraction of the decision-making process and of the project. These practices trigger the attention of the

project owner, who then decides whether or not to adopt risk management measures to ensure that the time and cost objectives are met. The major controversies that lead to power relations are generally not solvent through the traditional consultation procedure. They may result in a legal appeal, a new assessment of the project, or a decision process that lasts for several years, which shows the limits of the formalized procedures, on the one hand, and the consultation procedure, on the other hand. The example of the South Europe Atlantic HSL shows that the State called on three different experts to find an assessment of the compensation that puts an end to the appeals made by the Poitou-Charentes Nature association against the project.

5.3.4. The contractualization of infrastructure and development projects implies the financial responsibility of the parties and, therefore, encourages them to treat and control risks Contractualization in the form of development concessions and public–private partnership contracts makes the parties responsible. Each one is autonomous in his or her decision. The contract avoids the need to carry out a project in stages by financing it with public funds that are less quickly available and more limited. The latter are sometimes used to finance projects in segments. The expenditure is then spread over time, which has the advantage of delaying investments if the context is no longer favorable to the project (e.g. insufficient traffic or slower pace of commercialization). The contract empowers each party by sharing the specific risks for which it is financially responsible (see Chapter 3). This ensures that the signatories implement the means to ensure that the project is carried out as planned after the DUP and as indicated in the contract. The private partner shall bear the additional costs except in special cases. Compliance with the commissioning and construction deadline is important to the contractor. The delay may result in the payment of penalties to the delegator. For example, 800,000 euros per day in the case of the South Europe Atlantic HSL concession contract4. These penalties generally represent 10% of the sale price of the land in the case of development projects (bearing in mind that the contract holder must respect the deadlines for obtaining the building permit), of the end of construction, and of the sale5. In addition, in the event of delay, the private partner does not receive the toll revenue or cannot market the development operation and may not receive part of the banks’ capital provided for in the financing package on that date. In the particular case of development concessions, the financial balance sheet of the operation (including if the developer is a development SPL) must be balanced. A manager of a development SPL testifies:

“We make an assessment, it is always balanced. There is as much revenue as there is expenditure. This is managed throughout the operation. And year after year, we record what has been spent and collected and what we expect to happen. Cash is managed through loans or advances from the local authority or cash movements to offset the negative effects that may occur in some years. Delays in marketing can generate financial costs, i.e. saying over a year we may be in negative territory. This will generate financial costs, but in our balance sheet we also provide financial cost envelopes to support negative cash flows throughout the operation, but this does not mean that the local authority is putting it in the pot. This means that it is included in the development operation balance sheet […]. Do our revenues cover our expenses in full or not? If this is not the case, it is developed at the beginning of the operation to know if the local authority will contribute to the pot or not. If it is to evolve, it must in any case involve deliberation. There are discussions when the accounts are presented every year. […] The amount of participation is included in the concession contract. If you have to move this amount, you have to go through an endorsement to the concession contract”6. In the particular case of public–private partnership contracts signed for the construction and operation of transport infrastructure, respect for the quality of construction is guaranteed by the contract. If this quality is low, the private partner will have to bear the cost of additional maintenance. The quality of service is also defined. Penalties may apply if the operator does not meet these objectives (continuous service, winter operation of the structure, etc.). On the other hand, a partnership contract does not guarantee the traffic risk, whereas it is the responsibility of a concessionaire who directly collects the toll revenue from infrastructure use in the case of a concession contract. The private partner monitors the risks that may arise and ensures careful risk management to ensure that the time, cost, and quality objectives set out in the contract are met. Social or political risk, which is likely to produce a risk of litigation (then delay and extra cost), is particularly monitored within the framework of the consultation. To avoid recourse, the project owner may have to optimize the project by integrating requests from the local environment (protection against nuisances, modification of the route or location, compensation for the impact on the environment, etc.).

5.3.5. When the project precedes the plan: to adapt to market fluctuations or residents’ demands Territorial planning in the form of plans, schemes, and so on can overlap over time with the management of national or local development projects. The conduct of projects and the pace of progress of their design and implementation depend on the socio-economic context, their acceptability, the quality of the studies, the obtaining of administrative authorizations, their profitability, and their marketing potential. It can go through phases of stopping, resuming, “breathing”, and so on. Generally, a project is launched and the scheme or plan is modified or adapted to integrate the project once its characteristics have been specified according to the previously defined context elements (Haëntjens 2010; Zembri-Mary 2014). The latter also

form part of specific procedures (public debate, socio-economic and environmental assessment, preliminary studies, APS, APD, continuous consultation, and public inquiry). The definition of the project according to these procedures can anticipate the formalization of the scheme or plan. The two approaches seem to be intertwined and are sometimes inseparable from achieving a successful project. One example speaks for itself. This is the JDZ EuroRennes, which was designed prior to the revision of the SCOT in Rennes in 2015 and the amendment of the PLU in 2014. In parallel with the Brittany–Pays de la Loire HSL project, Rennes Métropole is committed to developing the neighborhoods near the future HSL station, which will also benefit from the commissioning of the second metro line.

Figure 5.2. Wasteland along the railway lines (EuroRennes JDZ site) in July 2015 (photo: author) EuroRennes is a multi-functional project of offices, housing, services, and shops located within a 58 ha JDZ to the south of the future multimodal hub and the future HSL station. This project makes it possible to enhance certain old and less lively neighborhoods located on the south of the railways and to extend the city center located on the north shore to them. The station and its district were among the strategic sites of the SCOT in 2007. The project was developed between 2009 and 2012 and was classified as being of community interest in 2009. The environmental authority issued a favorable opinion on the project in August 2012 after the impact assessment was submitted, which made it possible to launch the work. The project was the subject of a development concession, in the same year, to the development SPL Territoires publics. But the project has evolved. In 2009, it provided 200,000 m2 of predominantly tertiary NFA, with shops, services, and facilities and 600–800 housing units respecting the principles of social diversity. The project was then modified in 2012 to include 130,000 m2 of offices, 40,000 m2 of shops and services (a total of 170,000 m2), and 1,450 housing units7. The surface area of predominantly tertiary NFA has decreased by 30,000 m2 and the number of

housing units has increased twofold overall. In particular, elected officials expressed concern about the difficulty of marketing a large number of offices. The project included a tower. The destination of the latter has evolved over time, as shown by this exchange during an interview at the development SPL Territoires publics: “It can change. For example, the tower was not originally a residential one. It was a mixed tower that was being considered or even an office tower. But for economic reasons (the towers are quite expensive to manage because there are firemen who are there 24/7), we started with a programming exclusively for housing […]. This is because condominium charges, which include firefighters’ costs, are lower when it comes to housing. One firefighter for housing, two firefighters for offices and three firefighters when it is mixed. So you’re actually tripling the condominium fees.” Question: “Is it less attractive?” Answer: “Yes for the investor, but also for the final occupant. Because he’s the one who pays the charges. And we should not think that we are going to do affordable housing, for example, and think that people will pay three times as much as elsewhere. We worked with the promoter and the buyer to anticipate these questions and see how to build the project so that it would not be… so that we would not find ourselves in this situation.” Question: “Is it to try to match the project to the market and potential buyers?” Practitioner: “Yes, absolutely.” Question: “This is the margin of flexibility you can have to adapt the project to the economic situation?” Practitioner: “Yes”8. The 2015 SCOT and 2014 PLU have incorporated this project, which was already well advanced in its design. If we compare the 2007 and 2015 SCOTs, we can see that the 2015 SCOT is more precise than the previous one on the EuroRennes project, whose definition has been advanced and whose main objectives (extension of the city center to the south, mixed functions and development of tertiary functions, transfer of the station into a multimodal exchange hub, etc.) are included. As shown in the interviews, the nature of the project (housing, offices, etc.) may have varied over time according to the hazards of the market and the evolution of the needs of the inhabitants and lifestyles (e.g. the project owner may consider building furnished housing with one-year leases because 80% of new employment contracts in the city are fixed-term contracts)9. The PLU also evolved with the 2015 amendment. The zoning of the JDZ has changed from UF (railway zone) to UA for housing and services10. The PLU amendment document also specifies that “to allow flexibility in the execution of projects, various regulatory provisions have been introduced depending on the nature of the projects, their temporality and the urban planning rules in the vicinity” (p. 28). Generally, the interviews showed that there have been more changes in the PLU rules in recent years to incorporate project developments, although

the modification of a PLU is quite cumbersome and takes several months11. Adapting the plan to the evolution of the project makes it possible to take into account an uncertain economic situation or the vagaries of household purchasing behavior.

5.3.6. Participatory planning of development and urban planning operations The case studies of development and urban planning projects have shown that the risk of litigation is very present, and feared by elected officials and planners, public or private, especially since litigation can occur without any warning signs. The project leaders are, therefore, sensitive to the fact that the project is accepted by the majority of the inhabitants because there are development issues (construction of housing and public facilities required), financial issues (bearing the cost of land assets), and marketing issues. These issues can become risks if the operation is delayed: risk of not having useful housing and equipment, financial risk for the entity that bears the cost of land assets, and commercial risk. Social acceptability is, therefore, at the heart of the project approach. The participation of residents in the development of the project can be a way for project leaders to identify this “zone of uncertainty” of public reactions and behavior in relation to the project. Public participation also occurs in a context where traditional planning documents are considered as not very flexible in a changing context where responsiveness can be useful (see Chapter 1). Alexandre Chemetoff’s guide plan for the development of the Île de Nantes is a good example of an alternative to the classic plan. This plan was developed by the architect in partnership with the Société d’aménagement de la métropole Ouest Atlantique (SAMOA) in 1999. As Alexandre Chemetoff summarized in an interview in 2007, this tool was “more flexible and iterative, filling the missing link between the rule and the project where everyone plays their part”12. The plan presented development guidelines, established as part of SAMOA’s order (percentages of housing, including social housing, level of selling prices, etc.) and was subject to SCOT guidelines and PLU rules. This guide plan was regularly presented to residents, elected officials, public and private practitioners, and associations, and evolved in real time to take into account negotiations and new needs that appeared. The discussion with the inhabitants could focus on the location of the buildings, their height, volume, and materials, and the choice of public spaces13. As Alexandre Chemetoff points out: “Rather than setting priorities or constants, we observed and identified all the proposals and mapped them. It is important that the project be able to meet immediate demands, integrate temporary developments and everything that constitutes the life of a neighborhood”14. To do this, and to concretize requests resulting from discussions with the public, the JDZ creation file established in 2005 allowed height exchanges between buildings on the same property or even relaxed the conditions for building on the plots (Devisme

2007). The PLU rules have been revised accordingly. Discussions at the SPL Nantes métropole Aménagement showed that there was no major controversy or social risk during the development of this project of more than 300 ha. The project corresponded to an initial public request (percentage of housing, proportion of social housing, etc.) with a space for discussion and public appropriation of the project, which concerned, in particular, the layout of the project and its form. This approach, which the city of Nantes wanted, has therefore borne fruit and has had the benefit of adapting to an evolving context, for example by slowing down the project in the event of an economic crisis. While the example of Chemetoff’s guide plan is encouraging in identifying the area of uncertainty in social acceptability, public participation may take less advanced forms, or the project may be accelerated by some actors, leading to limited discussion and negotiation with the public and the outcome of the negotiation. For example, the guide plan for the redevelopment of the Izards-Trois-Cocus in Toulouse provided for the redesign of traffic routes and public spaces in 2011. However, the land belonged to private developers. These, driven by short-term profitability objectives, accelerated the first phase of the project, which had the effect of bypassing the phase of discussion and negotiation with the public, particularly on these public spaces or on the layout of buildings within these spaces. The high density desired by the developers resulted in buildings that were relatively tall (up to R + 10) and close together. Traffic and public spaces have therefore been reduced, which may have caused some discomfort for the inhabitants (low light, close) (Fauvet 2014). It should be noted that the form and degree of participation depend on local authorities. If the participation procedures are considered insufficient by the associations and the public, they may take the opposite approach and demand or even require different forms of consultation. The examples in Chapter 4 show that the public most often reacts with litigation, accompanied by demonstrations, media coverage, or even site occupation. Formal practices of anticipating uncertainties and managing risk make it possible to limit traditional project risks (risk of delay, risk of overspending, risk of commercialization, etc.). From a political and electoral point of view, it is always better for elected officials that the project is not “at risk”, as this can be controversial for the public or the opposition. It is also a situation sought by public or private project owners for transport infrastructure projects, for which a project that is late or more costly than expected implies penalties, postponement of commercial revenues, and so on. Territorialized practices can also enable public and private owners and developers to anticipate situations of controversy, social, or political opposition to the project and litigation, and then negotiate optimization of the transport infrastructure project or modification of the urban planning project. However, these territorialized practices do not always make it possible to avoid litigation and project blockage (especially in the case of development projects). The identification, treatment, and control of areas of uncertainty and risk enable stakeholders to identify opportunities, for example by modifying the project. It also allows them to make

other actors dependent on them. But they may consider this situation illegitimate and create controversy. In one way or another, risk identification, treatment, and control enable actors to establish power relations by applying these methods and practices since they thus control an area of uncertainty.

5.4. Taking advantage of risk to have a source of power While risk can traditionally be identified and addressed by methods or procedures, it can also be used by actors who wish to assert their interests in two ways: – by creating and taking advantage of areas of uncertainty not yet identified, which give an advantage to the actors who have identified them; – by adopting unpredictable behaviors to create doubt or uncertainty in the relational and decision-making process between actors. The case studies show that there are three unpredictable behaviors that can give an advantage to the actors who adopt them and allow them to develop power relations: creating coalitions that can unbalance the decision-making process, setting one’s action in different time frames compared to other actors to put them under pressure or surprise them, and developing a learning capacity to identify risks or deal with them (whether they are laymen or experts).

5.4.1. The creation and use of areas of uncertainty by actors to build power relations 5.4.1.1. When does an actor consider an unexpected event or uncertainty as a risk? An event can immediately represent a threat and risk to the actors or to the project if it is identified as such immediately, if its impact and seriousness seem significant and if measures should be sought to mitigate or avoid it. An event may also occur without any particular uncertainty. An episode of dissatisfaction among local residents during the consultation that accompanies the preliminary studies may result in controversy and then in a situation where the decision-making process is blocked, causing delays and additional costs. However, the project owner cannot know whether or not the initial dissatisfaction will result in a proven social risk. The case studies show that actors do not react in the same way. In a traditional way, public and private actors in planning and project management consider an event or uncertainty as a risk if it is possible to assess its impact and severity. Elected officials (especially in the case of major transport infrastructure projects and if they support them) consider a situation to be a risk if it threatens the project and its development objectives. Associations and residents (and elected officials in some cases) tend to identify territorial problems (environmental, social, etc.) that are considered little or not at all in project management studies, and to establish them as measured or unmeasured risks with counter-expertise. In particular, we

develop the cases of elected officials and associations whose perception and treatment of risk are less framed by risk thresholds than those of practitioners. 5.4.1.2. An uncertain situation is considered by the project owner as a risk if its impact and severity can be estimated The public project owner, the public developer, or the private partner (in the case of public– private partnership contracts or development concession contracts) considers an event as a risk when data objectively determine a possibility of delay or additional cost for a project because of this risk. It should be noted that the duration of the delay and the amount of the additional cost are not necessarily identifiable until the extent of the risk has been identified. The project owner then enters a period of uncertainty. This may be the discovery of an archeological site, geological or geotechnical hazards not identified by studies when a tunnel or a backfill is built, or more virulent opposition than expected. Context analysis, field knowledge, project management experience, and risk matrix design can identify a given event as a risk or not. The case studies show that the project owner does not seek to create areas of uncertainty but to identify and address them using methods, standards, and procedures. The development concession contract and the public–private partnership contract provide them with a framework within which the risk cannot remain a grey area because of the clauses provided for in the event of delay or non-compliance with the contract. To achieve this, the developer and the project owner have a wide range of tools at their disposal, which the public authorities have constantly improved over the past few decades in an effort to limit risks of all kinds. The State and local authorities (in the case of major transport projects and in the case of development and urban planning projects) must carry out projects that take into account the general interest, respect for procedures, and social demand. This is reflected in the willingness of the public and associations to participate in the selection of projects and their development so that their requests are heard and respected. The State, local authorities, development SPLs, and the public project owner (SNCF Réseau) must, therefore, communicate on the economic, financial, technical, and environmental characteristics of projects; otherwise, it will be difficult to legitimize them. Insufficient information can cause frustration among elected officials and the public or even the feeling that the public authority can or wants to push the project forward. Information that is too technical may be perceived as incomprehensible by the public. In any case, the local community may feel excluded from the decision-making process and frustrated because it considers its participation legitimate and and it may draw a controversy. The analysis of the texts relating to project management, consultation, environmental assessment, and socio-economic assessment in Chapter 3 shows that the State has modified them to anticipate risks. Risky events occurred during the decision-making process of some major projects during the 1990s (we can cite the controversy that remained in the memories of the Mediterranean HSL that contributed to the establishment of public debate) and societal

changes also occurred. This generally led the State services to consider that these events were sources of difficulties and risks for projects and the decision-making process. The impact of the projects on the natural and human environments (the subject of these controversies) was one of the main reasons for this change in doctrine. Over the years, public authorities have increased the level of detail required for impact studies and socio-economic assessments. The use of contractualization has involved the use of risk management methods. All these practices enable stakeholders to anticipate and better identify risk situations, their impact, and their severity. This framework of the decision-making process has led to its opening up to many other actors, which may have led to more flexibility and a certain plasticity of the projects. This plasticity is the hallmark of projects in which sometimes opposing forces have been exerted. This point is further developed in Chapter 6. 5.4.1.3. An event weakens or threatens the objectives of elected officials Local elected officials may wish to develop a long-term planning strategy that integrates the arrival of a highway, high-speed line, metro or tramway line, and local development objectives that focus on the station district (JDZ and/or restructuring of the public transport network), the maintenance or improvement of inter-city services through rail connections or a highway broadcaster connecting the urban center to the new infrastructure, or the possible reception of new businesses or new residents. An event that threatens the achievement of these objectives can be considered, consciously or unconsciously, as an area of uncertainty and can lead elected officials to react by using it for their benefit. This allows them to assert their interests with the State and the public project owner, particularly during the planning and definition phase of the project. This is reflected, for example, in the pressure exerted by elected Breton representatives on the State and RFF to accelerate the construction of the Brittany–Pays de la Loire HSL, the financing of which by the State has been put in competition with the South Europe Atlantic HSL. They stressed to the State the risk that the absence of high-speed lines could represent for the accessibility of the Brittany region, in a context of competition between regions and metropolises. Local elected officials can also exploit the uncertainty represented by the bad fortune clause in the concession contract. Elected officials concerned by the financing of the Brittany–Pays de la Loire HSL project feared that this clause would oblige them to compensate the concessionaire for the loss of revenue in the event of insufficient commercial revenues and threaten the balance of local accounts. They put these fears on the negotiating table with the State and RFF. They negotiated high regional financing (€1 billion) and the rapid completion of the line but refused this clause and even the theoretical obligation to contribute financially to the remuneration of the holder of the partnership contract. Due to the same uncertainties, the local authorities concerned by the route of the South Europe Atlantic HSL withdrew from the financial package, which included a bad fortune clause, but this clause was retained for the other authorities. In these various cases, local authorities have used uncertainties related to accessibility or additional and unpredictable financial burdens to make them into a tool for

negotiation (or withdrawal from the project). In this way, they established a power relationship that allowed the elected Breton representatives to obtain satisfaction by arguing the need to complete the project quickly for the Breton territory, and allowed the elected representatives in Aquitaine to threaten, for a while, the successful financing of the project (which was, in fact, later assured). The slowness of the planning procedure with the approval of each stage of a project by ministerial decision can be assessed as an uncertainty by elected officials or even as a risk if they feel that “their” project is competing with other projects. Elected officials may be “in a hurry” to move forward with a decision-making process that they consider too slow and threatening for the project due to competition from other projects. If necessary, they may decide to anticipate the decision-making process and the financing. The elected representatives of Lorraine and Alsace regions decided to pre-finance studies of the East HSL (Zembri-Mary 2014), and the Breton elected representatives began amicable land acquisitions before the DUP to accelerate the completion of the Brittany–Pays de la Loire HSL (Zembri-Mary 2018). The slowness, even the blocking of development and urban planning projects for several years in the event of recourse against the PLU or the DUP, is a real fear for local elected officials. The elected representatives of Theix-Noyalo15 near Vannes estimated that the econeighborhood project in the Brestivan JDZ could be delayed by 5 or 6 years due to an appeal by an association. The fear associated with this recourse is the lack of housing that could result in the long term. One of the mayors of Boulogne-Billancourt feared bearing the cost of land assets, estimated at several hundred million euros for the city because of the delay of several years in the development and equipment project on Île Seguin. The size of the sums involved required the elected representatives to continue the project, which could be done through mediation with the opposing associations and a slight reduction in the size of the disputed towers. 5.4.1.4. Associations and the public can identify territorial issues and identify them as risks By contrast, nature conservation associations advocate optimizing the use of existing transport infrastructure and limiting the use of natural land by JDZ projects to reduce the environmental impact of new projects. They are vigilant about the risk a project may pose to the natural and human environments, such as the survival of protected and emblematic species, their food supply, their reproduction, the maintenance of agricultural land, and natural areas. This position encourages them to be demanding with the public and private project owners on the environmental impact of a project and the measures envisaged to avoid, reduce, or compensate it and to react (through a request for consultation, media coverage, or legal recourse) when they consider that the impact is too high. They tend to react quickly. However, the nature and possible strength of their actions can be associated with the progressive feeling that they have not been able to fully express their views on compensation and that they have not been heard during the previous stages of the decisionmaking process, particularly when they consider that the consultation has been insufficient.

This is the case for many transport infrastructures planned before 1995 and, for which, there was no public debate (Langon–Pau highway or Lyon–Turin HSL). This is also the case for many development and urban planning projects. The examples in Chapter 4 show that the question of the project’s impact on the environment is central to controversies involving associations and residents, whether for logistics zone projects (JDZ des Bordes in Crisenoy and Fouju), sports facilities (Arena in Orléans) or housing (Theix Noyalo eco-neighborhood project), within the JDZ de Brestivan (periphery of Vannes). 5.4.1.4.1. Transforming a territorial issue into a risk Table 5.1 shows the process of transformation of a territorial issue at risk by nature protection or site defense associations. The territorial issues concerned are essentially environmental. However, there may be other grounds for contestation, in particular for transport infrastructure, such as cost, traffic forecasts, and so on. Risk can take three forms: that of a clearly measured risk, that of a risk perceived and called as such by associations but not measured, or that of a threat to the territory or its inhabitants. We establish this difference based on the tools used by associations to build risk. These may include technical or scientific counter-expertise, associative expertise based on local knowledge, or a negative perception of the project for the natural and human environments, not based on expertise or knowledge. The six case studies selected here are those most concerned by the identification of territorial issues and their introduction into public consultation in the form of risks by associations and residents (in relation to all the case studies presented). Table 5.1. The process of constructing a territorial problem at risk A65 Perception of a territorial issue, addressed or not addressed by studies

Construction Acceptability of risk of risk threshold (refusals, negotiations, and acceptance), which could translate into litigation against the project and the associated risks Technical support during the construction of territorial issues at risk

Lyon–Turin HSL Project Sub-soil threatening the containing symbolic asbestos and species of little uranium bustard and other species Project refusal, Project refusal, fast litigation violent demonstrations, litigation

Orléans Arena Proximity to a Natura 2000 zone on the banks of the Loire

Associative expertise, counter expertise, use

Proximity to a protected and classified zone

Counterexpertise

Project refusal, no litigation but opposition

Diffusion of risk perceived and identified

Taking advantage of the risk

Perception of a territorial issue addressed or not addressed by studies

of the term risk or threat Disputes, Virulent media coverage demonstrations, media coverage, disputes Obtaining Project delay, additional new route compensation JDZ, Bordes JDZ, Crisenoy Brestivan (Theix Noyalo) Fire risk not Destruction of under natural land, control, attack on living proximity to space and high road reproduction traffic for space of birds residents Refusal of Refusal of project, rapid project, appearance disputes of disputes

Construction Acceptability of risk of risk threshold (refusals, negotiations, and acceptance), which translates into potential litigation against the project and the associated risks Technical support during Insufficient construction of territorial estimated issues at risk impact assessment

Diffusion of risk perceived and identified Disputes, protests, media coverage Risk use

Blocking of

Media coverage, demonstrations

Stopping the project at the anticipated place Waste sorting and storage in Nonant-le-Pin Sub-soil pollution in an equine breeding area

Refusal of project, rapid appearance of disputes

ALUR act not respected

Estimated hydrogeological study is insufficient, counterexpertise Disputes, media Disputes, media coverage coverage, site occupation

Blocking of the Stopping of the

the project

project

project

This process begins with the perception of a problem of environmental, economic, or social territory that is not or is only slightly addressed in the studies and that it seems obvious to associations and residents to address. The examples studied show that this is most often an environmental issue. For example, the emblematic species of the bustard (a type of bird) has not been sufficiently integrated into impact studies for the A65 Langon–Pau highway and into the calculation of surface compensatory measures for the Sepanso association. The No Tav movement considered that the digging of the Lyon–Turin HSL tunnel could cause asbestos and uranium fumes that could potentially endanger the health of the inhabitants. The equestrian environment of Nonant-le-Pin has highlighted the possible pollution of the subsoil with the installation of a waste storage center. The associations pointed to the destruction of natural land that would result from the construction of a 40-ha housing development zone in Theix Noyalo. The “passage” of the environmental, social, or economic issue that the project represents for the territory at the “risk” stage is assessed in Table 5.2 using two criteria: the acceptability threshold and the technical support used by associations and residents to support why the project no longer only raises issues for the territory, but also represents a threat or risk. The threshold of acceptability of the risk that the project may represent for the territory was assessed by the level of the reaction of the associations and inhabitants, i.e. their refusal, willingness to negotiate or their acceptance of the project, and the existence or not of a dispute, rapid-occurring or not. An association that makes a rapid appeal to request the cancellation of an administrative authorization or a modification of a PLU because of the risks or threats that the project is likely to cause to the territory or its inhabitants is assigned a low or zero acceptability threshold (equal to 4). Table 5.2. Assigning acceptability levels for the project’s risk to the environment based on the level of the reaction of residents and associations

Acceptance of risks/threats Negotiation of compensatory measures in relation to identified risks/threats Refusal of identified risks/threats

No protests 1 2

Protests

3

4

None 3

Level 4 is the lowest level of risk acceptability, whereas level 1 is the highest. The second index of risk construction from the territorial stake is the technical support used by the actors: counter-expertise, use of standards, classified areas, or principle enshrined in law or associative expertise not formalized by a reference system. To justify the existence of a clearly measured or established risk, associations use technical or environmental counterexpertise (A65 Langon–Pau highway, Lyon–Turin HSL, and Nonant-le-Pin waste storage

center), protected area classifications (such as the proximity of the Orléans Arena project to a UNESCO site and a flood risk area), or compliance with a regulated principle (such as the principle of limiting the use of natural land for new urbanization in the case of the econeighborhood project in Theix Noyalo, provided for in Act No. 2014-366 of March 24, 2014 on access to housing and renovated urban planning, known as the ALUR Act). The construction of risk is also observed in the vocabulary used. The term “risk” is clearly used in counter-expertise, referentials, or statements by associations (A65 Langon–Pau highway: risk of extinction for the bustard; Lyon–Turin HSL: health risk; JDZ Bordes Logistics in Crisenoy: fire risk; Nonant-le-Pin waste storage center: hydrological risk and health risk). Risk can also be perceived but not measured by local actors. The example of opposition to the logistics zone project in Crisenoy and Fouju shows this. The elected representatives considered the impact study as insufficient because the project could cause nuisance to the residents and because they believe the fire risk is underestimated, but the elected representatives and residents have not provided a counter-expertise for the moment. Table 5.3. Summary of the levels of environmental risk acceptability for each project A65 Lyon–Turin Orléans JDZ JDZ HSL arena Bordes Brestivan Crisenoy (Theix Noyalo)

Acceptability level of the risk of the project for the environment

4

4

3

4

4

Waste sorting and storage center, Nonant-lePin 4

Overall, the threshold of acceptability for risks associated with the projects studied is low (between 3 and 4). The level of acceptability of health risks, pollution, destruction of natural areas and so on is low. This concerns in particular urban projects, which elected officials prefer to abandon because of the risk of non re-election, the financial risk associated with bearing the cost of land assets, and so on. On the other hand, the risks associated with the major transport projects studied, for which the project management has been entrusted to a private partner, are more subject to negotiations on compensatory measures. The private partner is required to respect the work and delivery schedule due to late payment penalties related to the contract and the need for banks to pay the loan installments. They, therefore, prefer to deepen the impact study (with the associations) and negotiate high compensatory measures. The construction of a risk not listed in the planner’s or project owner’s studies allows associations, elected officials, and residents to create an area of uncertainty in the decision-making and project development process, especially since this project risk for the territory can be used by stakeholders to promote their interests or achieve specific objectives. From this perspective, there are two other steps: disseminating and taking advantage of risk.

5.4.1.4.2. Disseminating and taking advantage of risk The risk was disseminated by the case study stakeholders through fairly traditional means. Risk generally begins with fairly peaceful demonstrations, particularly at key moments in the decision-making process (public debate, public inquiry, modification of the PLU, etc.). These demonstrations are often accompanied by media coverage of the case, with press releases, interviews, and articles in the local or national press. This mediatization can persist over time. Associations are also very active on the Internet. They each have their own site kept up to date and make numerous official or unofficial documents available, both from the developer or project owner and from activists. The next step is litigation, which has the power to strengthen media coverage of the project, its impacts, and the position of associations. Television coverage is generally more frequent during litigation. Finally, the ultimate step is the occupation of the site or ZAD. The number of such projects has increased in recent years, both in terms of megaprojects, such as Notre-Dame-des-Landes airport, and in terms of smaller projects such as the Nonant-le-Pin waste storage center. We have also seen opponents start forming a ZAD on agricultural land to be used for the construction of the stadium in Lyon. It was quickly dissolved after negotiation. Documents from some associations in several case studies indicate that they are ready to occupy the site if necessary. The dissemination and media coverage of the project areas of uncertainty or risks to the natural or human environment can increase with the multiplication of litigations. However, we do not observe in the cases studied and any propagation of “fake news” that could contribute to creating a risk that does not exist or to a climate of uncertainty. Media coverage can trigger litigation proceedings that can last several years, especially if the parties increase the number of appeals. The purpose of the action is generally to block or cancel the project. The risk of the project to the natural or human environment is used as a reason for this appeal against an administrative decision. There may also be less frequent militant opposition in favor of environmental protection and against the financialization of projects (this is the case for the association opposed to the eco-neighborhood of Theix Noyalo). Elected officials can also benefit from the risk. Their role contributes to giving weight to the position of associations and the public. Elected officials may consider the project as a risk to the quality of life of future residents or agricultural activity at several levels (micro-local to regional). Their objective may then be to move the project away from this territory. In the case of transport infrastructures, they can relay the positions of the inhabitants and farmers from the project owner and represent their interests. They do that in order to obtain a modification of the route and a modification of the profile crossways or lengthways during the consultation period linked to the optimization studies in order to avoid proximity to dwellings or too sharp a cut-off effect on agricultural holdings. For example, the President of the General Council of the Deux-Sèvres department strongly positioned himself in 1987 so that the connection of the future A83 Nantes–Niort highway to the A10 highway would spare the Marais Poitevin and the urbanized areas south of Niort. This position was taken up by local elected officials and associations until another route was chosen in 1992, although

President François Mitterrand initially supported the route through the urbanized areas south of Niort. The elected representatives of Mayenne wanted the Brittany–Pays de la Loire HSL to spare as much agricultural land as possible. The elected representatives of Sarthe insisted that the route be far enough away from the local residents to not cause any nuisance (noise, visual nuisance, and pollution). In the case of development projects, elected officials who put risk at the center of the debate are generally opposed to the project and to the municipal majority. These are risks that the project poses to the environment or public finances. Opposition representatives denounced the location of the Arena project in Orléans on the banks of the Loire and the cost of this investment (more than €100 million) on local finances. An elected member of the BoulogneBillancourt City Council resigned in opposition to a variant of the Île Seguin development and equipment project. This process of moving from perceived project issues for the territory to risks (measured in most examples) shows that risk construction can result from voluntary action. Beyond the construction of risk, local action can continue by seeking to use the threat that the project may represent for a vulnerable territory (depending on its point of view) as an argument to counter the project or make it evolve. This approach, particularly if there is a dispute that can block the project for several years, effectively establishes a power relationship with the project leaders, in favor of the associations. These power relations can also evolve over time.

5.4.2. Actors implementing unpredictable behavior to create doubt and uncertainty among other actors The case studies also show that actors implement unpredictable behaviors to create doubt and uncertainty among other actors. These behaviors allow actors to achieve a desired result in the short and medium terms. They can take the form of coalitions that are built and dismantled as the project is designed and implemented. They can also allow actors, by creating their own temporalities, to take advantage during the process. They can also take the form of learning from some actors, who then find themselves on an equal footing with other actors. 5.4.2.1. Coalition tactics Actors who feel their interests and objectives are threatened (feeling there is a risk of failure to achieve) or fragile in relation to the interests of other actors (feeling of uncertainty) may seek partners who will have identical objectives to mitigate or eliminate risk or uncertainty. The project coalition composed of elected representatives and/or associations and/or the economic community develops a common position on the development project, based on a common argument and implements means to hold this position and try to win the case16. The coalition is a reaction by political actors who strongly support a project and believe that there is strength in numbers. The coalition allows them to anticipate the decision-making process so that it does not fall behind. The statement by the coalition of Breton elected representatives to refuse to assume the traffic risk in the partnership contract for the Brittany–

Pays de la Loire HSL project, which they strongly supported, is eloquent. A project owner of RFF (SNCF Réseau) states that: “Brittany–Pays de la Loire, this was blocked because we were wondering whether we were going to start with a concession model or a partnership contract model with a traffic risk that remained on the side, either of the public project owner (State, RFF, local authorities) or of the private partner. That’s when there was a blockage. The communities said: We were able to do the work by ourselves, that is, to do our banking syndication for the communities. We are not asking the government to make subsidized rates, to guarantee loans over 30 or 40 years. We managed on our own. So now you’re taking the risk of traffic”17. The signing of a joint financing agreement with the Breton elected representatives in 2009 showed the State that they were ready to contribute 25% of the financing of the HSL project. The launch of land acquisitions before the DUP with government departments was also expected to save time on procedures. We also saw Aquitaine’s elected representatives, from all political tendencies combined, grouping together to write a letter to Prime Minister François Fillon and Minister of Ecology Jean-Louis Borloo demanding the construction of the A65 Langon–Pau highway in 2008 after the CNPN’s double-negative opinion. In the case of development projects, the examples developed in the previous chapter show that local elected officials generally form coalitions in favor of the project they support. But we can note some cases of political coalitions opposed to projects. This is the case of the 110ha Bordes logistics zone in Crisenoy and Fouju, in the Île-de-France region. Local elected officials opposed this project in 2017 because of risks for residents (risk of fire in future buildings and proximity to a sharp increase in heavy goods vehicle traffic for residents). The elected representatives discussed and finalized an action plan at a Municipal Council meeting on June 30, 2017, against the project in the form of an appeal to the Administrative Court against the decision of the County Council of November 18, 201618, to divert and recalibrate road 57, which would allow accessing the future JDZ. This appeal was made with the help of a lawyer. The political coalition also took the form of petitions, public meetings, demonstrations, and articles in the press about their position. The public inquiry took place in August and September 2017. The elected representatives’ appeal blocked the project for a while. Municipal elected officials have become dominant players in this period of the decision-making process compared to the Departmental Council, and the DIY store interested in the first establishment, for which they refused to give an opinion on the building permit. The decision and the project are blocked until the court decision has been rendered. The public can also form its own coalitions. The example of the A400 Annemasse–Thononles-Bains highway shows this. The first coalition in support of the project was formed in the first half of the 1990s. It was composed of local elected officials and representatives of the economic community. The second coalition opposed to the project was formed, bringing together residents and environmental protection supporters. They opposed the project not

only for environmental reasons but also for reasons related to what they considered to be the project’s illegitimacy: the lack of a prospect of extending the highway to Switzerland, a four lane conversion of the national road parallel to the project already largely underway, difficult technical implementation conditions, and an overestimation of the socio-economic profitability of the project. These coalitions did not change during the genesis of the project. Opponents of the project obtained the cancellation of the DUP in the State Council in 1997. With regard to development projects, the case of Île Seguin in Boulogne Billancourt is illustrative. Six associations (Vue sur l’île Seguin, Boulogne Environnement, Action environnement Boulogne-Billancourt, Intégrer Billancourt, Vivre à Meudon, and Val de Seine Vert) individually or together brought three appeals against the densification of the island provided for by the PLU. These appeals were each time ex gratia and then contentious. They were spread over 18 years. The first took place in 2004, the second in 2011, and the last in 2014. Mediation was then organized in 2018. These coalitions were leaders in the decisionmaking process, opposing each new version of the PLU. The city did not abandon the project because of the financial commitment related to bearing the cost of land assets but was forced to review it by reducing the size of the towers at the end of each appeal won by the associations. The height of the towers decreased from 110 m high to 75 and 92 m. The action registers of these coalitions include pressure (associations occupying the site of the future waste sorting and recycling center in Nonant-le-Pin, refusal to finance by the local elected officials in the case of the A65 Langon–Pau highway, the Brittany–Pays de la Loire HSL, and South Europe Atlantic HSL), negotiation (requests for stations from elected officials or negotiations on the layout of transport infrastructure, negotiation of residents on the height of buildings), anticipation (financing of studies by local elected officials for the Brittany–Pays de la Loire HSL), the ultimatum (requirement of Breton elected officials that the work of the Brittany–Pays de la Loire HSL be carried out before 2010 in exchange for their significant funding), or legal recourse (case of nature protection associations against the DUP of the A65 Langon–Pau highway, the South Europe Atlantic HSL, or associations or residents against the Île Seguin project in Boulogne Billancourt, against the Espace Confluent project in Rezé (Nantes), against the Bordes JDZ in Crisenoy and Fouju, or against the waste sorting and storage center in Nonant-le-Pin). 5.4.2.2. Tactics of temporal differentiation The examples show that actors benefit from managing the temporalities of the decisionmaking process. This can allow actors to play on its flexibility and maintain their focus on their objectives if they are weakened or even to change the position of other actors if it is not compatible with their own objectives. This tactic is reflected in the desire of some elected officials to control the pace of the study and consultation procedure by anticipating and financing studies, land acquisitions, and works in order to prevent competition from other projects from stopping the project they support. Public project owners can also put in competition different projects to encourage local elected officials who are in favor of a project, but reluctant to finance it, to position them quickly; otherwise, their project will be postponed sine die19.

In the case of major transport projects that are studied and carried out over several years or even decades, and which are subject to a long consultation process (public debate, public inquiry, and continuous consultation), the conduct of the consultation is also a period when the project owner can differentiate the timing of the discussion according to the different partners. The project owner determines, according to the problems encountered, the choice of subjects to be addressed in consultation (layout, service, and protection of local residents), the choice of interlocutor (which mayor and which association), and the choice of the time of the consultation. The sensitivity of certain subjects (proximity to residents along a route, agricultural consolidation, and distribution of funding) means that the project owner knows that it should try to see one mayor, one farmer, or one interlocutor before another because it will then be able to relay with others, and that it is preferable to do so at a given time to facilitate the discussion. A project owner for RFF (SNCF Réseau) states that: “there is a new profession, new skills that have developed. It is all the engineering of consultation, the organization of collective work: what are we talking about with whom, when, who should be involved in the different bodies. It does not look like much, but the choice of governance is very structuring”20. This tactic is confirmed by the private project owner, who continues to pursue consultation after the DUP when the land is acquired, the works are carried out, and the project design is finally optimized. Nature conservation associations can also work subtly with the different phases of the decision-making process to obtain additional environmental compensation. The example of the controversy over the bustard during the construction of the South Europe Atlantic HSL shows this (Vandevelde 2013). The Poitou-Charentes Nature association, a regional federation of local nature conservation associations, made early demands for the implementation of the HSL project on biodiversity protection. A controversy broke out between this association and RFF over the impact of the project on the bustard, which was incorrectly assessed by RFF according to the association. The association questioned the method of determining the number of bustards, and considered that the level of importance given to the HSL as a factor in reducing the number of bustards was too low and that the impact of land development on the bird was underestimated. The controversy emerged because the associations felt excluded from the discussions on compensation. They proposed forming working groups on this subject, which were rejected by the State in 2006. The commissioners of the public inquiry took into account the remarks on the crossing of watercourses and requested additional studies (which will lead to the adaptation of many structures21) but did not retain many remarks on fauna, flora, or protected environments. The associations were more disappointed. They claimed 2000 ha of the compensatory measures and initially obtained 170 ha. They therefore decided to publicize the case and appeal to the Prime Minister and then to the Council of State to have the DUP annulled in a chronologically tense context of the signing of the concession contract between RFF and Vinci. Both appeals were dismissed. This tactic has already been used against the A65 Langon–Pau highway by Sepanso. It

allows associations to carefully play for time with the project owner, who may fear that the project may be delayed. Finally, the associations obtained 700 ha of compensation for the South Europe Atlantic HSL after a triple-state-led evaluation. The associations came out almost satisfied. In the case of development and urban planning projects, recourse to the administrative court is a means for an association that is opposed to it to delay a project, and to make the local authority and the promoter uncertain as to its implementation, because the judgment periods are long and the court’s decision may favor association. Further subsequent appeals against an unfavorable decision by the administrative court are also possible, which may further extend the project’s duration. The case of the Theix Noyalo eco-neighborhood project, within the Brestivan JDZ (periphery of Vannes) is illustrative because the association that opposed it really took the developer and the local authority by surprise. It includes 980 housing units to be delivered in lots of 57 units on 40 ha of the agricultural land. The project is to be carried out in ten phases until 2035. It includes 30% subsidized housing and an urban block is dedicated to innovative alternative housing (e.g. self-construction). The project is integrated into an AEU approach (environmental approach to urban planning promoting energy choices, water management, and sustainable waste management). The dossier for the creation of the JDZ was approved in 2016. The public inquiry was completed in early 2018.

Figure 5.3. Scope of the Theix Noyalo eco-neighborhood project (aerial photo IGN 2013). For a color version of this figure, see www.iste.co.uk/zembri/risks.zip

An ex gratia appeal by a nature protection association Les amis des chemins de ronde to the Rennes administrative court against the prefectoral decree authorizing the work forced the developer to stop the work in November 2018. This recourse occurred a few days before the start of the work, which greatly surprised the elected officials and the proponent, as no one had come forward during the public inquiry. The collective issued a press release on October 13, 201822 in which it explained its motivations. They were primarily environmental: “This project is characterized first and foremost by its gigantic size. At a time when public policies and successive laws (SRU23, ALUR24, NOTRe25 laws) are seeking to curb the consumption of space, how can a modest coastal municipality have as its first ambition and even pride itself on destroying, in a single operation, some forty areas of bocage, home to some thirty protected bird species? This, on the immediate border of a Natura 2000 area and the drinking water catchment of Vannes, which is intended to become the outlet for the road water of a huge housing estate… […] Talking about an econeighborhood for the 1,000 housing units in the Brestivan JDZ is only a communication operation. By entrusting most of the operation of the JDZ to a large private developer, the municipality immediately abandoned any real ecological ambition”. The collective also opposed the implementation of this project with a private developer (which is also a local family company, and not a large group), denouncing a financial logic: “Claiming that the operation will be carried out over a period of seventeen years is also a fallacy since the file specifies that this timetable is in fact only a guide and that the pace of construction will be dictated by the real estate market: we can therefore count on the Gi group […] to stimulate a sustained pace towards the reduction of natural areas”. The mayor, therefore, decided to freeze the project because he believed that litigation could take between 6 and 7 years26 while deciding to discuss with Les amis des chemins de ronde to try finding compensation for the environmental impacts and, in particular, the consumption of agricultural land. For the mayor, the balance of the municipality’s housing projects was in question. 5.4.2.3. Learning tactics Learning is a way for actors to achieve their objectives in situations of uncertainty and risk, especially if it is new. It involves continuous studies of the project and the territory, the revision of studies of the same project, and its adaptation to the context (within technical and financial limits). Project owners of major transport projects seek to territorialize projects by optimizing their design in response to unforeseen public demands. The East HSL project manager talks about a road crossing the HSL:

“The technicians made a beautiful structure at right angles to the HSL, economic (author’s note: to allow inhabitants to cross the HSL). It created a big clash. People asked us to make a cut-and-cover trench almost 300 m long. The problem was simply that in winter we had snowdrifts and that by changing the route of the road we would put it in a direction where we increased the risk of snowdrifts. So the solution was very simple. We said: we are building a slanting bridge and we will restore the road to you as it was before. It cost almost nothing when we were facing a high possibility of being blocked. People wanted a cut-and-cover trench and we didn’t want one”27. According to this project manager, in general, in a context of continuous consultation with the public, it is not advisable to present to the public a version of the project that is almost completed. The project has the potential to lead to further adaptations and savings. It is, therefore, advisable to leave a margin of optimization for the project that allows certain modifications – value of the profile, radius of curvature, and volume of materials – according to the requests that can be formulated and satisfied during the consultation and discussions with the elected representatives. However, it should be noted that a high speed line has fewer adjustment possibilities than a highway due to geometry and straightness constraints related to high speed. For example, shifting the line 10 m to avoid a property or any other “obstacle” has an impact on the 10-km line length. The dimensioning of bridges, viaducts, or tunnels is more flexible. Elected officials who pre-finance preliminary and APS studies also have at their disposal this means of advancing the decision-making process led by the State, which is not always in a hurry to carry out projects and to discuss or even negotiate with the project owner a route and technical characteristics that correspond to their development and integration objectives. In the case of the development and urban planning projects studied, this learning process results in changes in PLUs, particularly in the event of appeals won by associations and in revisions of design studies. The Île Seguin PLU was reviewed or modified five times between 2004 and 2018 by the city of Boulogne-Billancourt after each appeal. Project design studies may evolve according to perceived or identified risks. This approach leads the project owner to take better advantage of an area of uncertainty to identify opportunities that will enable them to carry out an acceptable project. We call this evolution of the project the plasticity of the project. This area of uncertainty may be an opposition to the project, an unfavorable economic situation, or as in the example following the long duration of the project, which does not allow the precise composition of the JDZ to be determined immediately. This requires that the developer and the promoter have the flexibility to learn about the context (market, needs of potential buyers, etc.) at the time the project is launched and the flexibility to adapt it. The testimony of this SPL practitioner in charge of the EuroRennes JDZ clearly shows this:

“What we also have to see is that when we have a development operation in general we try to be less precise in the PLU… We still manage the main things, but basically the PLU leaves us a little bit of leeway in the sense that we have a project that we have to lead and that we have to direct. On operations like EuroRennes for example, there are many detailed plans in the PLU that only give a direction in terms of height for the moment for example because it fits into a broader framework which is the city center. At least we manage the question of heights. But the programming is not fixed at this point. So we still have room for maneuver within development operations because, since the local authority knows that the project is managed in a JDZ, it knows that there will always be a planning and political perspective because we still have steering committees and a number of governance tools on these sectors. So we have a little more flexibility in the context of JDZ operations”28. Finally, associations also develop local expertise in different forms. Nature conservation associations can have a detailed knowledge of natural species that can be useful in verifying whether the impact study of a project has taken them into account and, if necessary, point out a risk of the project impacting these species, which can sometimes lead to changes in compensatory measures (South Europe Atlantic HSL and the A65 Langon–Pau highway). This knowledge can also be useful to public and private project owners who anticipate a project passing before the CNPN.

5.5. Conclusion The analysis of procedures, texts, risk assessment, and management methods shows that the social and political risks, financial risk, regulatory risk, and the risk presented by the project for the natural and human environments or archeology are considered from the outset of the project. These procedures and methods enable actors to anticipate situations of uncertainty or risk, counter or tame their “adversaries”, find partners, limit conflict situations and additional costs, or identify opportunities. In addition to the policed use of these formalized procedures and methods, the actors exercise power relations between each other. Trust between stakeholders is an essential parameter for the success of a project (OMEGA 2012). However, the analysis of the decision-making processes in this chapter shows that power really is used, particularly in the event of a deadlock in the decision-making process or a threat to the interests of certain actors. The decision-making and design process is flexible and continuous between the first studies and the DUP – or even after – to define a project and is marked by milestones that can make each step irreversible (ministerial decision, DUP, PLU modification, and JDZ creation file), unless there is a dispute. Faced with risks, the decision-making, planning, and design process must adapt to planned or unexpected events and develop flexibility29. However, it is also governed by institutional procedures, project management, or risk analysis methods. All the projects studied in the

previous chapter show this dual character of the decision-making process, planning, and project design. These characteristics of contemporary project planning and design are accompanied by paradoxes, particularly in a context of uncertainty, which may be surprising in relation to the efforts made by public authorities to integrate risk into assessment and consultation procedures and to make projects less vulnerable to attack. This is the subject of the next chapter. 1 Compensation can generate additional costs if it has not been included in the final cost of the project. A farmer can receive €2,500 per year for 8 ha devoted to the preservation of species during the term of the concession. This sum is paid by the concessionaire or the holder of the partnership contract. However, practitioners note that the question of the applicability of surface compensation is beginning to be debated, including at the CNPN, as it involves a lot of natural land. The compensations of several projects may overlap. 2 Source: GIE CLERE interview, November 19, 2013. 3 Source: interview about an HSL project, March 2014. 4 Source: maintenance and site visit with Liséa, concession holder of the South Europe Atlantic HSL, June 2014. 5 Source: interview SPL Nantes Métropole Aménagement, January 2019. 6 Source: SPL Territoires publics interview, Rennes, November 23, 2018. 7 Source: Debontrides X., “Les trois grands enjeux d’EuroRennes”, Place Publique, 8–10, January/February 2016. 8 Source: SPL Territoires publics interview, Rennes, November 23, 2018. 9 Source: SPL Territoires publics interview, Rennes, July 8, 2015. 10 Source: Rennes métropole, PLU, Modification no. 9, June 2015. 11 Source: SPL Territoires publics interview, Rennes, July 8, 2015. 12 Source: “Alexandre Chemetoff ou la logique du vivant”, Sud-Ouest, January 2007 (interview). 13 Source: SPL Nantes métropole Aménagement interview, January 2019. 14 Source: “Alexandre Chemetoff ou la logique du vivantˮ, Sud-Ouest, January 2007 (interview). 15 See the project in section 5.4.2.2. 16 We refer to Jérôme Valluy (1996) who developed two case studies of project coalitions.

17 Source: RFF interview, February 4, 2014. 18 Source: Decision of the Departmental Council of 18 November 2016 on the “deviation and recalibration of road 57 in the territories of the municipalities of Crisenoy and Fouju. Dossier for taking into account amendments”, no. CD-2016/11/18-3/06. 19 Source: representative wishing to remain anonymous. 20 Source: RFF interview, February 5, 2014. 21 Source: visit to the South Europe Atlantic site, July 2, 2014. 22 Source: Les amis des chemins de ronde du Morbihan website, available : http://www.acr56.net/. 23 Act No. 2000-1208 of December 13, 2000 on urban solidarity and renewal, known as the SRU Act. 24 Act No. 2014-366 of March 24, 2014 on access to housing and renovated urban planning, known as the ALUR Act. 25 Act No. 2015-991 of August 7, 2015 on the new territorial organization of the Republic, Nouvelle organisation territoriale de la République, known as the NOTRe. 26 Source: Paitier S., “Theix-Noyalo. Un projet d’écoquartier bloqué”, Le Télégramme, online, available at: https://www.letelegramme.fr/bretagne/theix-noyalo-un-projet-decoquartier-bloque-09-10-2018-12102235.php, October 9, 2018. 27 Source: RFF interview, December 13, 2013. 28 Source: SPL Territoires publics interview, Rennes, November 23, 2018. 29 Two quotes illustrate this flexibility, which exists for all types of projects. A project owner testified: “A project, you think of it being carried out even if you do not have the means to define what its realization will be at each stage. But you always have to tell yourself that you’re going to add more. There is something at each step. A political decision adds to this. Generally, it does not mean that it is cheaper. This always has a consequence. So if you don’t have any room for maneuver, you get stuck pretty quickly. So, keeping a little bit of flexibility in the project management and governance is essential.” Source: RFF interview, February 4, 2014. Another HSL project owner testifies: “And then we move on to the next step or we make a partial decision. We say ‘we go forward on this part, but we ask you to deepen or treat this or that part and compared to the original circular, there is a certain number of flexibilities that have been introduced […] so there is a little bit of the disadvantage of the ratchet. We say ‘this is now mature so we will be able to collect this and the project is gradually defined’. We know what it can be overall, but in some cases we have to adapt one of the decision perimeters to the project perimeter, so there is this form of flexibility”. Source: RFF interview of February 5, 2014.

6 The Paradoxes of Project Planning and Management 6.1. Introduction It can be assumed that the major effort to provide a legal and methodological framework for evaluation, financing, consultation, and project management procedures and practices – which has resulted in an impressive increase in the volume of urban planning and environmental codes – has made it possible to take greater account of the environmental impacts of projects, to facilitate consultation, to respect costs, to limit uncertainties and risks, and to make projects less contestable. Paradoxically, an overall analysis of these procedures and methods, and their use by actors in case studies shows that things are not so simple. They also show that the contemporary decision-making, planning, and project management modalities can also create additional uncertainties and risks in a context of increased social, economic, and environmental uncertainty, and of exploitation of uncertainties and risks as a tool for power relations. This chapter examines and formalizes these paradoxes. First, it analyzes the characteristics of contemporary flexible project planning and management, the opportunities it can generate, and also the additional uncertainties and risks it can cause. It then turns to the multiplication of rules and their consequences for relations between actors, which can ultimately lead to the emergence of opportunities and new risks. Finally, it discusses how the theoretical models of strategic planning (and especially collaborative planning) are no longer necessarily in phase with the uncertainty and power relationships that govern the planning and conduct of many projects, and that impact use of the plan.

6.2. Flexible planning and project management offers opportunities but generates new risks 6.2.1. Flexibility of the decision-making, planning and project management process We define flexibility in the decision-making, planning, and project management process according to five characteristics: adaptation, process monitoring, information transmission, negotiation, construction, and taking advantage of risks. These five characteristics are reflected in this process as follows. Adaptation of the process can be observed from different points of view. The decision is often based on a project logic, which is based on the strategies and interests of the various actors between whom an agreement must exist. This may involve

implementing a territorial strategy (improving a service, avoiding the passage of a high-speed line at a given location, increasing the number of housing or offices, building a mall, etc.) or defending a position (not artificializing the soil, protecting a sensitive site, avoiding pollution, etc.). These strategies may sometimes be of different importance, depending on whether they are examined from the perspective of the expert, associations, the technical interest of the project, or cost containment. Adapting the decision to the territorial or socioeconomic context of the project can have several consequences. The project and the actors may need a “breathing time” during which coalitions reform, actors change, or an economic situation takes time to improve. The decision-making process can also encounter blocking situations. The project owner and developer may also face regulatory, political, or other risks that disrupt the decision-making process and may require the project design to be redesigned to optimize it (see Box 6.1). The environmental protection injunction is stronger today. Act No. 2009-967 of August 3, 2009, on the implementation of the Grenelle Environment Round Table (known as the Grenelle 1 law) required project owners to establish compensation at the level of the ecological continuity of the species. In terms of urban planning, Law No. 2014-366 of March 24, 2014, on access to housing and renovated urban planning, (known as the ALUR law), establishes the principle of limiting the use of natural land for new construction. Project owners and associations use these texts to take studies further, create controversy, or develop the project. Flexibility in the decision-making and planning process is also characterized by a tendency for stakeholders to seek information that may be missing from the project evaluation. This is useful information to validate the successive stages of the project. In particular, the project owner seeks to obtain information from local nature protection associations on the many plant and animal species living within the project’s study area in order to assess surface compensation as effectively as possible and obtain a favorable opinion from the environmental authority. The project owner also ensures continuous monitoring of the evolution of technical, environmental, and other regulations that could impact the project and its completion times and cost. They may have to review the studies if these regulations change. Associations and the public are informed about ongoing studies and regulations. They can have counter-expertise carried out to demonstrate their point of view on the project and obtain technical developments or its cancelation. Flexibility is also promoted by monitoring the project and the context; this monitoring is carried out by the project owner throughout the decision-making, planning, and design process. SNCF Réseau carries out an ongoing territorial context analysis of preliminary studies for the DUP (in the case of a concession or partnership contract) or commissioning (in the case of financing from own and public funds). The public institution carries out a risk analysis and conducts continuous consultation with the public and elected officials in the field over the same period. Concessionaires or holders of partnership contracts take the same steps between signing the contract and commissioning the infrastructure and development

project. These practices make it possible to identify social, political, financial, regulatory, and other risks and uncertainties early enough to be able to deal with them and avoid, as far as possible, blocking of the project – even if it means that the actors agree to make concessions and/or the project is adapted. The flexibility of the decision-making process also depends on the coalitions of actors that can be formed and evolve between preliminary studies and commissioning. The formation of coalitions varies according to the leadership of certain actors, often political, and their ability to get other actors to support their point of view. Coalitions can be variable in geometry and include or exclude actors depending on the period of the decision-making process, and whether or not their objectives are taken into account. For example, local authorities financing an HSL or a highway project may temporarily or permanently withdraw from the financing plan for a project on the grounds that their service objectives are not taken into account by the project owner. Elected officials who are dissatisfied with an inter-municipal development or urban planning project can come together to oppose it and develop an appropriate strategy. Flexibility is also based on the construction and use of risk by players. Risk factors are identified, perceived, or constructed by the actors. The acceptability threshold for the same risk may differ from one project to another and depends on the degree of activism, motivation, or expertise of associations, residents, or professionals. The methods of disseminating this risk may vary according to the projects and may use different channels that give it a different importance. The risk factors are linked to the diversity of the actors’ objectives (service, local development, etc.); the application of environmental regulations; disagreements, the possibility of controversies, or even conflicts or disputes with the local environment or associations; the problem of the distribution of funding; the maintenance of this funding; technical failures; geological problems; land acquisitions; land consolidation; nuisances during construction; and road rehabilitation. These risk factors can impact the plasticity of the project, its integration into the human and natural environment, the time frame, and the cost. Actors are not sensitive to these risk factors in the same way. Project owners, local elected officials, and developers are concerned by all these factors. Local residents and farmers are concerned about land consolidation, land acquisitions, or nuisances. Associations and the public at large are particularly concerned by environmental risk factors, or the cost to public finances. Each actor seeks to identify risk factors, and avoid or reduce risk through anticipation, formalized risk management methods, consultation, coalitions, learning, or the use of power.

Box 6.1. The project optimization process: the example of HSLs Project management is part of a project optimization process. This optimization consists

of modifying certain technical characteristics in compliance with the project declared to be of public utility. This may involve extending a bridge in accordance with the Water Act 2006-1772 of December 30, 2006, reviewing the sequence of land movements, or the organization of local traffic after the construction site. Optimization makes it possible to achieve the cost objectives. For example, extending a bridge to cross a valley is less expensive than moving very large amounts of land to make a leveling backfill between the ends of a shorter bridge and the top of each side of the valley. Optimizing the work organization of the various trades and subcontractors on the site saves time on planning or absorbs a delay or additional cost induced by a risk. This work organization can consist of modifying the place or period of work of a team on a section of the site, working in 3 × 8, adopting a flexible management of interface problems between trades thanks to a global vision of the site, and setting up a communication and validation system by all those responsible for the modifications made by each actor. Optimization also allows the project owner to make the final adjustments and design changes to the project resulting from public requests, such as building an oblique bridge at the HSL that facilitates the passage of agricultural machinery rather than a perpendicular bridge. This optimization approach resulting from local requests can be combined with cost reduction or can delay catch-up objectives. It also makes it possible to better territorialize the project and project management. The project owner must detect the hard points of land negotiation or the impact of the high-speed line for local residents. Consultation makes it possible to identify, among other hazards and as far as possible, those related to the territory (presence of a very active nature protection association, landowners, and difficult expropriations) and to try to avoid or reduce risks. The private partner must find a solution to these problems under banking constraints. The private partner is the first point of contact for elected officials, residents, farmers, banks, and the State after the DUP. It is committed to its image, as evidenced by the interviews with the various construction groups, and, as far as possible, to delivering an operational project on time. Its role as leader of a territorial project requires it to communicate to the public on the progress of the project, its characteristics, road modifications due to the work, and the location of the work sites. It must be close to the State services and the prefect for obtaining administrative authorizations, elected officials, and their services to facilitate communication with the public and expropriated farmers and local residents affected by the project. However, optimization does not guarantee the absence of subsequent risks.

Figure 6.1. Example of landscaping and land movements (visible in the background) for the construction of the South Europe Atlantic HSL near Tours (photo: author)

6.2.2. The plasticity of the project and the production of new risks: the example of Météor The flexibility of the decision-making process, planning, and contemporary project design can lead to opportunities. For example, the route of a transport infrastructure may change. A member of the public project owner testified: “There was not far from 40% of the GPSO (Grand Projet du Sud Ouest LGV – Big Project of the South West HSL) which was not an original route. We had submitted routes at the start of the consultation, but they were taken up, adjusted and adapted following local exchanges with the various stakeholders”1. The Météor example also shows the evolution of the project resulting from the deepening of the studies due to the very uncertain political and economic project context and the new risks that emerged at the end of this period of flexibility.

Figure 6.2. Bibliothèque station (photo: author) Météor’s decision-making process involved two competing transport companies (RATP and SNCF) and institutional levels with different development issues to find a solution to the saturation of line A of the RER. In 2000, Gare-de-Lyon became the busiest station on the line (36 million passengers). This growth was partly due to the opening of new sections of the line in the eastern and western suburbs of Paris, and the growing importance of the La Défense employment center, located west of Paris. After various reflections, the RATP Development department developed a route (among other variants) with an automatic metro project that started from Gare de Lyon, went to République, Gare de l’Est, Gare du Nord, and ended at Gare Saint-Lazare (“Météor 2”). SNCF did not appreciate this proposed route. For its part, it wanted to send a part of the suburban services underground, because they arrived at a dead end at the gare de l’Est. With this in mind, SNCF proposed a project, called “SNCF Est”, and then renamed Eole (EstOuest Liaison Express) and future RER line E, which would connect Marne-la-Vallée, Chelles, and Tournan, in the eastern part of suburbs, to Saint Lazare. A competition then emerged between the two companies, and it was up to the State to decide between the two projects (Figure 6.3).

Figure 6.3. The SNCF Est and Météor 2 projects (1988) (map: author) Relations between the SNCF and RATP departments were strained, particularly due to debates on traffic sharing between the two projects2. The first studies carried out by the Direction Régionale de l’Equipement de l’Île-de-France (DREIF) in 1988 showed that the layout and capacity of the “SNCF Est” solution, the future E line of the RER3, was better suited than “Météor 2” to the long-term desaturation objective of line A (Dufour 1988a)4. The second study showed that it was better to carry out the “SNCF Est” solution first and then Météor (Dufour 1988b). RATP quickly realized that the SNCF project had a high chance of obtaining public funding and that, when designing the Météor route, account had to follow the route of the SNCF solution through the northern and eastern stations. This route has therefore been modified. The project now followed RER line A between Gare-de-Lyon and Châtelet with two new objectives, in addition to reducing saturation: to join line 13 of the saturated metro to the

north and to serve the south of Paris by joining line 7 of the metro (Figure 6.4). The City of Paris did not initially take sides with Eole or Météor. In 1987, speeches by elected representatives concerned the discharge of line A of the RER and the service of the 13th arrondissement to the south-east of Paris where 150 ha were to be urbanized, but without calling Eole into question. The Île-de-France region designed this transport project on a capital scale and did not make it a financial priority. The Météor service did not matter to it, whereas Eole had the benefit of being a regional project linking suburbs to the center. Finally, the State gave greater support to the Mayor of Paris in his plan to develop the southeastern districts, because Paris had strategic importance with regard to other countries as the capital and showcase of French technical know-how. The State also chose to build the new Bibliothèque Nationale de France (now Bibliothèque-François-Mitterrand) at this location and the Ministry of Finance in Bercy. However, the State was divided between Eole and Météor because they were dependent on two public companies.

Figure 6.4. The final route of the Meteor and Eole (map: author) The decision to build both Eole and Météor was taken by the Prime Minister on February 7, 1989. The 1989–1993 State-region planning contract granted €230 million for the connection between Gare-du-Nord and Châtelet-les-Halles via the RER D line, and the same amount for Eole and Météor, which was clearly insufficient compared to the final cost of the projects (€1.35 billion for Météor and €1.5 billion for Eole). The funders, in particular, RATP and the City of Paris, added other objectives than the desaturation of line A of the RER as the project progressed, which led to a change in its final layout and assimilated Météor partly into to a more conventional metro with short intersections. However, this geographical fragmentation of service objectives in relation to

the problem of line A of the RER was fairly quickly accompanied by a consensus between the partners. After the decision to carry out the two projects jointly in February 1989, funding problems persisted and there was a need to segment Météor into three phases, which extended the duration of the project. This also led to 10 years of difficult negotiations during the 1990s between RATP and its financial partners to find the resources to finance the last two phases (up to the Olympiads in the south and Saint-Lazare in the north). In particular, the region experienced difficulties in pursuing the implementation of Météor because it also had to finance Eole and its resources decreased between 1993 and 1996 with the drop in revenues related to office transactions. It was hesitant to continue with the project but then allowed itself to be convinced by RATP, because it was more expensive to stop work than to continue. A shutdown would have required compensation to be paid to the companies, the worksites to be secured, the tunnel boring machine to be put back into service at a later date in the event of resumption of work, and so on. The failure of the public authorities to choose between the Eole and Météor projects between 1987 and 1989 and funding problems led to a postponement of the project from year to year. The first Madeleine-Bibliothèque-François-Mitterrand section was opened in 1998, the second Madeleine-Saint-Lazare section in 2003, and the last section of BibliothèqueFrançois-Mitterrand-Olympiades 2007, 18 years after the Prime Minister decided to implement this project in 1989. Adapting to this uncertain context, and revising the studies accordingly, has enabled actors to integrate into a learning process, into coalitions, and still bring their project to fruition, albeit at a significant delay. The plasticity of Météor means that the desaturation objectives of line A of the RER, which motivated the original route, could not be met. Line A remains the most used line in Europe with 1.2 million passengers per day. There is, therefore, a risk of a decrease in service quality and a particular technical malfunction on this line due to its saturation at certain times. In addition, line 14 is now being used to desaturate the heavily congested metro line 13 in northwestern Paris. Its integration into the Grand Paris Express, which will see its extension to Saint-Denis Pleyel in the North and Orly in the South, now gives it a regional scope and places it very far from the initial objectives. Flexibility and plasticity were, therefore, maximized.

Figure 6.5. The skylight of the Saint Lazare station (photo: author)

6.2.3. Flexibility and risks The flexibility of the decision-making process, planning, and contemporary project design leads to opportunities, such as negotiation, context-specific project modification, and so on. Public debate, public inquiry, ongoing consultation, the dissemination of territorial issues, and informal stakeholder practices also contribute to this. This flexibility, intended to facilitate the decision-making process, can also lead to additional risks, such as delays or additional costs. The deepening of studies resulting from greater monitoring may, for example, require a review of the project. The delay means that the price of raw materials, technical services, or land may increase. This is an example of a risk. There are many other combinations of risks of all kinds related to flexibility. However, this case has not been considered by the texts.

6.3. An inflation of rules that creates additional risks 6.3.1. A more precise legal framework for evaluation, consultation, financing, and contractualization The search for certain robustness in the decision-making, planning, and project management process can be characterized by a search for stability in the face of uncertainties and risks. This is reflected in the use of particular procedures or practices by actors. Procedures and practices can be created after difficulties encountered in previous projects. They can replace or add to those that already exist. Public debate, public inquiry, and ongoing consultation have been opened up to greater public participation in an attempt to limit the risk of controversy, opposition, and recourse.

The term “securing” the process is used in various documents. But at the same time, the rights of appeal against the illegality of consultations carried out by local authorities have been restricted. Environmental assessment is more demanding. The need to carry out works without deficit or by reducing the cost of land assets (due to the constraints imposed by banks and institutional investors for private companies), and the requirement that borrowers have a sound and stable financial situation on the part of banks have led to the integration of risk into socioeconomic assessments, strengthening of financial valuation, and the use of risk management. The use of agreements and contractualization between actors is also part of this search for stability. The choice of a public–private partnership or development concession contract can also stabilize an uncertain decision-making process on the future of a project when public funding is insufficient. There are more procedures that follow or mark the decision-making and planning process. Working methods and, in particular, risk management are more formalized (matrices and financial calculations linked to risks) than they could have been 20 or 30 years ago. Developers and project owners must also ensure that they do not miss any procedural obligations (submission of files to the authorities, obtaining administrative authorization, quality of studies, etc.); otherwise, they run the risk of an administrative blockage or legal action for a procedural defect, for example, and additional costs. In addition, the need for stability in private contracting and the requirement for project stability on the part of lending banks may limit the technical innovation, whose installation and operating procedures are a source of uncertainty. Banks will tend to require the use of proven technologies. According to the interlocutors interviewed, public funding seems more appropriate for the choice of new technologies by the actors.

6.3.2. More rules and obligations for the private project owner and developer The private sector holding concession contracts, partnership contracts, or development concession contracts must carry out missions of public utility or general interest which are usually the prerogatives of the State or local authorities. In particular, it is in charge of the expropriation procedure for public utility purposes. Expropriation, which is traditionally a public prerogative, can be delegated to them by contract. Private partners have to face the ambiguity of carrying out this mission while representing the market sector, which is not always well-perceived locally. They must settle difficult expropriation cases, negotiate the price of land and housing, and carry out these acquisitions in a few months in order to respect the schedule agreed with banks and public contract partners. In addition to traditional project management objectives (respect of deadlines, costs, construction quality standards, etc.), it must also respect general interest objectives relating to the environment. This means limiting nuisances and pollution of all kinds during the works,

limiting land clearing, complying with construction standards designed to limit the impact on hydrology (floods, groundwater, etc.), and valuing the compensation designed to protect the habitat of natural species. In the case of transport infrastructure, the concessionaire or the holder of the partnership contract also employs local jobseekers on site, provides vocational training, and may sign subcontracts with local companies. This approach, which can lead to greater acceptance of the project, has the advantage of contributing to the local economy and satisfying elected officials. It is one of the communication themes of the private partners. Public project owners and public developers seek to avoid situations of uncertainty and risks through in-depth knowledge of the field (continuous consultation), monitoring of potential risks, and the use of traditional risk management methods in the private sector. In this way, it develops a way of managing the projects, which is very close to the latter. A notable difference remains: public project management is not constrained by bank supervision.

6.3.3. More rules and more opportunities for appeals Conflicts over projects have increased. There have been about 50 conflicts over transport projects since 1985 (all modes and types of infrastructure combined). Projects for nuclear sites, dams, power generation facilities, quarries, plants, non-hazardous waste treatment, and storage facilities can be the subject of many conflicts, such as commercial facilities or sports, cultural, or recreational facilities. “Small” projects (subdivisions, offices, collective housing, etc.) can also lead to conflicts (Subra 2008). The case studies presented in Chapter 4 reflect the wide diversity of projects that are at risk of opposition or litigation. There are also a number of non-mediatized projects that are successful, that have not experienced any social or political risk, or that have been achieved through informal actions (discreet lobbying, negotiations outside the consultation arenas, etc.). Conflicts, which often result in litigation, are more frequent while, paradoxically, more rules have more precisely regulated the practice of environmental assessment, socioeconomic assessment, consultation, financing, and project management since the second half of the 1990s, in order to make projects as unassailable as possible. Events or impacts that could become a threat to the project or its natural or human environment have been incorporated into these practices (although they are not always accurately assessed). These rules have given those who wish to take advantage of them the opportunity to oppose them to project leaders. If a project does not meet a particular standard, principle, or way of conducting a study, it becomes possible to use the standard, principle, or rule not met as a basis for controversy and litigation. Failure to comply with a standard, principle or rule contained in a decree, law or circular may be sufficient to block, change or cancel the project. These rules and obligations often concern environmental issues that can be put at risk because failure to comply with them poses a threat to soils, waters, natural lands, or species. Act No. 2006-1772 of December 30, 2006, on water and aquatic environments deals with the concept of compensatory measures. It indicates that IOTA (installation works and activities) that have an impact on wetlands are subject to prefectoral authorization on the basis of a

project impact study file5 (which is close to the impact study) in which the project owner assesses the project’s impacts on wetlands and the measures necessary to reduce, avoid, or compensate them. The text can be used by actors to bring an appeal if they consider these impacts to be insufficiently detailed or measured. Act No. 2009-967 of August 3, 2009, on the implementation of Grenelle 1 environmental round table and Act No. 2010-788 of July 12, 2010, on a national commitment to the environment, known as Grenelle 2, oblige project owners to implement actions or measures that generate ecological benefits that are at least equal to the unavoidable or unreduced ecological loss. An administrative authorization decision completes this step of the process. If the mandatory description of the measures envisaged and the follow-up procedures envisaged by the project owner seem insufficient in the dossier submitted to the environmental authority, or if the measures are not implemented or do not cover ecological continuity (i.e. territories not occupied by a species but nevertheless suitable for that species), associations and inhabitants may find this a ground for appeal. The two Grenelle laws 1 and 2 also led to an evolution of the administrative doctrine on the impact assessment of transport infrastructure and nuclear installations, which now includes an analysis of the ecological issues and potential risks associated with the land, natural or forest development induced by the project. Again, if the analysis of the issues and risks considered seems incomplete, recourse is possible. Since Decree No. 2011-2019 of December 29, 2011, reforming the impact studies of works, structures, or development projects, impact studies are part of a more global set of studies. The project owner or developer must provide for measures to avoid, reduce, and/or compensate for sufficient impacts. If the results obtained are less than the compensatory measures indicated by the public authorities in the project authorizations, recourse is possible. Act No. 2014-366 of March 24, 2014, on access to housing and renovated urban planning, known as the ALUR Act, established the principle of “initiating the ecological transition of territories by encouraging densification and stopping the artificialization of land”, particularly in the agricultural or natural sectors. If the sectors open to urbanization seem oversized; if a natural or agricultural area in zones 2AU that has not been the subject of a land purchase or development project after 9 years is not downgraded; if a polluted area has not been cleared by the company leaving it; if a property has not been rehabilitated by the commercial sign that stops its activity; and if “multiple small scale operations” are used too much in a natural environment (which goes against the limitation of urban sprawl), a remedy is also possible. Act No. 2016-1087 of August 8, 2016, on the restoration of biodiversity, nature, and landscapes strengthened the environmental principles that project owners must take into account in the design and implementation of projects. If the possible environmental effects of the project on neighboring territories are not studied, if there are still net losses of biodiversity that do not maintain the same level of biodiversity before and after the project is carried out, and if the ecological impacts of the project are unavoidable or cannot be reduced,

and if the project owner has not taken measures to compensate them or purchase parcels of a “natural compensation site”, players have grounds for recourse. As the possible grounds for appeal refer to rules or obligations, the probability of winning the appeal is high. It is not guaranteed, however, because it depends on the judge, the quality of the case, and media coverage of the case. The following point highlights the additional risks that may arise under these regulations if they are used.

6.3.4. Risks related to controversies for non-compliance with rules: risk of litigation (sometimes in a chain), risk of delay or termination of the project, risk of additional costs The projects selected for this analysis are those to which opposition or litigation was based on non-compliance with one of the texts described earlier. Table 6.1, summarizing the case studies, shows that opposition and litigation in all cases result in additional costs linked to delay, additional compensation, or bearing the cost of land assets. Figures are generally not available for the latter case. The additional cost is assumed by the public authority or by the developer or private project owner, as the case may be. Another consequence is the termination of the project, which can lead to risks for development or urban planning policy, such as a lack of housing or business premises or a lack of improved accessibility. The project may be blocked, particularly if a court decision is pending. This situation can cause a delay of several years for the project, and the planning and urban development policy. We refer to Chapter 4 for details of the decision-making, planning, and design processes for each project. Table 6.1. The risks of litigation, delay, project termination, and additional costs after opposition for six case studies A 65 Perception of a territorial problem addressed or not addressed by studies, construction of risk Opposition and/or disputes

Project threatening symbolic species (mink, false ringlets, etc.)

Result of disputes or opposition Delay/stopping of project

Additional compensation sought 6 months

Increased litigation

Lyon–Turin HSL Orléans Arena Sub-soil contains Proximity to a asbestos and Natura 2000 uranium on the banks of the Loire Virulent demonstrations, litigation Delay to project, new layout Several years (also due to financial

Opposition but no litigation Project stopped Project stopped

Excess costs

€250 million divided equally between the concessionaire and the State due to delay. €120 million linked to compensation. Bordes Crisenoy JDZ

Perception of a territorial problem addressed or not addressed by studies, construction of risk Opposition and/or disputes Result of disputes or opposition Delay/stopping of project Excess costs

and agreement problems between states). Excess costs Bearing the linked to delay cost of the ground purchased for millions of euros

Brestivan JDZ (Theix Noyalo)

Waste sorting and storage center (Nonant-le-Pin) Fire risk Destruction of natural Sub-soil pollution in an uncontrolled land. Attack on living equine breeding area Proximity to space and high road traffic reproduction space of for residents birds. Fast litigation Litigation Fast litigation Project blocked Project blocked

Project stopped

Blockage

Project stopped

Blockage

Bearing the cost Bearing the cost of of land assets land assets

Cost of the waste sorting center built by GDE but not operated and cost of grounds purchase.

The large areas currently required for compensation are also a source of uncertainty. Owners may have difficulty finding “public” land, especially in the case of high-speed line and highway projects, which may require several hundred to several thousand hectares of surface compensation. One option for the project owner may be to sign a contract with a farmer who could provide restoration of threatened species for a fee. However, the contracts have different durations depending on the type of restoration to be carried out. The number of compensation contracts to be renewed with farmers by the end of the partnership or concession contract is very high for the private partner: 572 for the South Europe Atlantic HSL and 380 for the Brittany–Pays de la Loire HSL. However, private partners’ contracts are longlasting. The concession contract for the South Europe Atlantic HSL lasts 50 years, and the partnership contract for the Brittany–Pays de la Loire HSL lasts 25 years. If farmers stop their activity or no longer wish to continue the compensation contract, it is possible that the

number of such contracts will be even higher due to the difficulty of renewing them. This could lead to a risk for the sustainability of compensation. From an environmental point of view, compensation sites can also be quite far from the project’s impact areas (due to difficulties in finding them and the existence of compensation sectors already allocated to other projects) and small in size. This can potentially pose a threat to ecological continuity. For recent projects, there are successive chains of risks over time, particularly in the event of litigation. The cases of the Île Seguin project in Boulogne-Billancourt and the waste sorting and storage center in Nonant-le-Pin are eloquent. The highlighting of territorial issues, risks, and the succession of disputes with alternating favorable and unfavorable court decisions show different risk chains over time, for the project owner, the local authority, associations, or a private partner. These risk chains also do not exclude opportunities, which are generally favorable to opposing associations. They remain in the minority if we consider the projects we have studied and their current status (the majority have been stopped or are frozen). For example, the Île Seguin development project in Boulogne-Billancourt was reviewed by the city during the five disputes against the PLU. The following example of the A 65 Langon–Pau highway clearly shows the process of new risks emerging after an unforeseen episode of change in environmental doctrine and compensation assessment practices.

6.3.5. The example of the consequences of the great national debate on the environment on the achievement of the A 65 Langon–Pau highway: litigation, delay, and additional costs The stricter application of the framework for the environmental assessment practices of projects and compensation measures following the 2007 Great National Debate on the Environment, and then Law No. 2009-967 of August 3, 2009, on programming for the implementation of the 268 commitments of the Grenelle Environment Forum, could not be anticipated by the A’liénor concessionaire for the A 65 highway. It equates it to a risk6, linked to a change in administrative doctrine. In January 2007, the Sepanso association filed a complaint for “destruction of non-domestic and protected animal species” and “destruction of the particular environment of nondomestic and protected animal species”, offenses punishable by 6 months’ imprisonment and a fine of €9,000. The association informed the prefect by letter, filed a complaint and mediatized the case. On February 16, 2007, Sepanso and various nature protection associations filed an appeal with the litigation division of the State Council against the DUP decree on the project and the decree approving the concession contract signed between the State and the A’liénor company. Other associations opposed to highway projects had already tried the same type of recourse, with success. The associations justified this recourse, in particular, by the threat the highway would pose to endangered natural species (mink, white-legged crayfish, etc.). For them, the risk of these

species’ destruction did not justify the construction of a highway with fairly uncertain traffic levels. The reasons given were numerous, the large majority being environmental reasons: – the inadequacy of the inventory of protected and emblematic species in the impact study; – the inadequacy of measures to protect these species; – the absence of a carbon footprint; – the absence of an assessment of the environmental cost of the project; – the composition of the public inquiry commission. Two investigating commissioners would have been in a conflict of interest situation; – insufficient traffic forecasts. The expected traffic would not allow the project, according to the association, to reach an operating balance. The absence of public debate seems to have caused controversies around the A 65 Langon– Pau highway. Sepanso believes that the public inquiry was distorted, as it stated in an interview: “It was completely fake, and in any case, whatever the quality of the arguments that could be brought to this inquiry everything was decided in advance. The investigation is a formality”7. According to Sepanso, the lack of public debate did not allow associations and the public to be fully-informed, to expose positions opposed to the concessionary highway solution, and did not allow the public authorities to take them into account: “We were unable to explain our points of view, speak in public, request information and show inconsistencies. At the financial level, for example, we knew that profitability did not require a degree in economics to know that a road combining local and distant traffic capped at 7,000 vehicles/day […]. We would have needed to be able to say that in the debate. We couldn’t do it. We were a little frustrated about that”8. The State Council dismissed the applicants on the grounds that the arguments put forward – both in substance and in form – did not allow the two decrees to be called into question and that the necessary studies and compensatory measures had indeed been taken into account in the initial studies. However, the matter did not end there for the associations. A’liénor submitted a request for an exemption for the destruction of species and habitats of protected species to the CNPN during the first quarter of 2008. This first dossier proposed 65 ha of compensatory measures. According to the procedure, the CNPN issues a favorable or unfavorable opinion. The State then does or not grant authorization to start work. This authorization is important for the project owner, especially in the private sector. Failure to do so may result in months of delay in commissioning. The first case was rejected by the CNPN on the grounds that these measures were insufficient in relation to the protection needs of known natural species on the site’s route. The project had to be adjusted to avoid impacts on fauna and flora with a detailed

impact study. Impacts that could not be avoided had to be reduced by appropriate measures. The residual impacts were to be compensated for. During the first half of 2008, the project’s water law dossier was validated. The concessionaire then had to submit the second file to the CNPN. The case has reached 1,200 ha of compensation. The CNPN issued the second unfavorable opinion. Local nature protection associations would have benefited from national contacts (particularly at the CNPN)9. A third dossier presented with 1,372 ha of compensation obtained a favorable opinion. In 2008, A’liénor decided to contract its ecological compensation program with the Caisse des dépôts et consignations Biodiversité, created 1 month earlier to limit the risk of cost drift. CDC Biodiversités is a subsidiary of Caisse des Dépôts. It can provide expertise and operational assistance to project owners for which compensation measures are not part of the core business. It can identify and “secure” compensation sites (e.g. by purchasing them); ensure the design, management, monitoring, and control of compensation; keep the project owner informed of the monitoring; and help to communicate on the actions financed. In particular, CDC Biodiversité monitors the costs of compensation for A’liénor, in order to control the costs as effectively as possible. After the favorable opinion of the CNPN and authorization by the State to start the work, the private concessionaire was responsible for the consolidation and expropriation of land required for the project and for the compensation, often experienced as a trauma by farmers whose means of work, sometimes transmitted from generation to generation, could be affected. The A 65 highway required 1,500 ha of expropriations for the project. For A’liénor, expropriating 1,372 ha of surface compensation in addition to those provided for in the first studies could generate a risk of farmers’ opposition to the project. The company, therefore, chose not to buy the land and to sign agreements with the owners. The operation consisted in restoring grasslands in intensive cultivation areas with average yields. The concessionaire undertook to compensate the owners for an amount equivalent to or greater than the income generated by the initial crop, provided that they maintain the condition of the land and protect the natural habitat of the species considered in the studies10. A’liénor and CDC Biodiversité achieved the objective of securing ecological compensation sites within the set deadline, i.e. June 22, 2012, in accordance with the State’s commitments and the 2008 administrative decrees. The “ecological debt” was estimated at 187 ha of rest areas and ecological sites for mink and otters, 525 ha for bats and 216 ha for the false ringlet11. In total, A’liénor spent 15% of the construction cost of the structure on measures to reduce and compensate for impacts, i.e. €120 million. The 6-month delay due to the consequences of the great national debate on the environment was increased to 8 months due to difficult climatic conditions (a very wet winter 2008–2009 and storm Klaus) for the smooth running of the earthworks. Climatic events required the designer-builder group (GIE A 65 Pau–Langon) to double the teams from 6 a.m. to 10 p.m. and increase the number of earthmoving machines to make up for 2 months of delay over the 6 months. In addition, the site management decided to treat the cement-based form layers

(170,000 metric tonnes) and the lower parts of the lime earthworks (170,000 metric tonnes) to reinforce waterlogged areas. The additional costs related to earthwork problems could be offset by a reduction in the costs of engineering structures in the optimization phase of the structure after the DUP12. The company A’liénor claimed €25013 million from the State as compensation for the 6 months of interruption of the works. After negotiations, the concessionaire received €90 million from the State and benefited from a 5-year extension of the concession contract. The shareholders of A’liénor have granted a capital increase (the amount of which has not been disclosed). An amendment to the concession contract was signed on July 12, 201014, between the President of A’liénor and the Minister of Ecology Jean-Louis Borloo. This amendment amended the specifications of the first version of the concession contract, the decree of which was signed in 2006. The comparison between the two documents shows that the contractual relations have been adapted to the environmental regulations and their consequences for the concessionaire and the project. This comparison shows the increase in costs (Article 7) and the compensation of 50% of the €250 million, as well as the extension of the concession, which allows the concessionaire to receive toll revenue for an additional 5 years: Article 7: the value of work entrusted to third parties by the concessionaire increases from €208,280,000 constant value to €221,625,000 constant value on November 1, 2005. Article 24: the public competitions of the original contract concern the delivery of the Airesur-Adour diversion. The amendment adds “financial compensation paid to the concessionaire pursuant to a settlement agreement”. Article 29: the duration of the concession is increased from 55 to 60 years after the publication of the decree approving the concession agreement. Article 39-9 is added to the amendment. The concessionaire must comply with environmental obligations under the orders of the Minister of Ecology and interprefectoral orders authorizing the destruction of protected species and habitats. In the event of noncompliance, penalties of €25,000 per day of delay may be applied by the licensor.

6.4. The paradoxes of theoretical reference planning models in relation to contemporary decision-making, planning, and project design practices Planning models have the advantage of proposing a formalization of practices developed by the actors involved in this process (experts, elected officials, promoters, developers, associations, the public, etc.). The purpose of this section is to position contemporary decision-making, planning, and design practices that have been previously detailed in relation to these models. It shows the existence of a paradox, which is the existence of power relations based on control, construction, and taking advantage of risk, whereas theory

formalizes a collaborative planning model. To develop this paradox, the three theoretical planning models are first presented, with their limitations. Then, this section explains how risks (and the power relationships they induce) are only partially taken into account by the models. Finally, these power relations are formalized on the basis of the case studies in the previous chapters.

6.4.1. Reference planning models and their limitations On an international scale, the complexity of planning and an uncertain environment have challenged the traditional long-term planning model of predict and provide. During the 1960s–1980s this was to forecast demand, with no certainty that these forecasts would be accurate 10, 20, or 30 years later, and which essentially gave experts and policymakers a voice (Bertolini 2012). Feedback from several projects shows that forecasts, which are rarely accurate, can limit the success of a project, and generate financial risk (Flyvbjerg et al. 2008). The expert voice and the legitimacy of politics can be questioned by a civil society that often wishes to participate in the project. Two generic planning models now coexist in the international literature: collaborative planning and strategic planning. A third (less common) model called flexible planning has also been developed. These planning models are defined in terms of challenging the traditional model, and are adaptive models to the project’s environment and social context. They are based in part on data collection and the exchange of knowledge and ideas between project stakeholders. The collaborative model has become more referenced over the past decade or so (Douay 2010). 6.4.1.1. Challenging the traditional planning model The traditional or rational model was instituted at the end of the 19th century to plan land use. Its use intensified in Great Britain and France during the 1950s and 1960s. In France, public authorities have had to put in place tools to control urban growth under the effect of strong demographic pressure in cities. These tools have also made it possible to organize urban space (distribution of urban functions by zoning, urban forms, densities), thanks to Decree No. 58-1464 of December 31, 1958, creating priority areas for urbanization and the Land Orientation Act No. 67-1253 of December 30, 1967. This planning, conducted by public authorities through procedures, could be seen as a means of determining the location of investments and land use. This planning was accompanied by a closed decision-making process, focused on policies and planning experts. Scientific, rational methods of expertise played an important role in the choices made and in decision-making formalized by plans. In terms of soil planning, these methods consisted in mobilizing statistical data (demography, industrial projects, etc.) to determine equipment needs, their nature, their possible location, and the land to be mobilized represented by a plan. In transport infrastructure planning, experts used cost-benefit analysis to identify a project’s

internal rate of return (IRR) and assess its interest in relation to other projects. This figure made it possible to legitimize the construction of the first highways in France in the 1960s. This method has been qualified with the terms predict and provide. In other words, the method was based on the forecast and the provision of infrastructure, equipment, and housing corresponding to these forecasts. The challenge was to make the most accurate forecasts possible so that infrastructure, utilities, and housing would be useful in the future. Instead, the decision-making and planning process was centralized and hierarchical (top-down approach) and imposed itself on local planning documents. These planning and decision-making practices have been criticized since the 1990s after the neoliberal shift in the international economy. The slowdown in economic growth during the 1980s transformed the role of the State in economic and social development in the name of greater individual responsibility, and announced a reflection on the relevance of public intervention in these areas. The State has consulted less with social actors, distributed resources less, and instead turned to economic and social regulation (Jobert 1994). Taxpayer intervention may also have encouraged governments to limit budgetary spending and to use partnerships with private real estate developers and construction companies to provide equipment, JDZs, or major infrastructure projects. Economic instability also marked the beginning of a critique of long-term planning plans and patterns (sometimes spanning several decades). They were considered unsuitable for an evolving economic and social context. State control over these planning documents was perceived as too rigid to take into account the functioning of the market and as a reflection of a decision-making process that is not very open to the society with regard to increased demand for participation. All these criticisms have been formalized by Albrechts (2004) for land use planning. Planning has gradually shifted from managing administrative territories to managing projects. 6.4.1.2. Strategic planning Strategic planning has been used since the 1980s and is still in use. It has its roots in corporate rationalization practices since the 1960s and in North American public sector practices. The companies had to face an important technical evolution that could call into question dominant positions. They have invested heavily in research and development and have, therefore, set up a long-term reflection and strategy. This evolution led to the creation of the neo-liberal reference system used later by public management. A link was established between planning and the achievement of objectives in a project approach. Strategic planning consists in collectively developing, through participatory processes, a multi-sectoral and multi-scalar project for a larger urban area or territory by working i) on the definition of objectives related to this territory project, ii) on planning by identifying actions likely to have a potential long-term impact according to the selected objectives, and iii) on

strategy by selecting actions that make it possible to articulate sectoral policies between them (Healey 2004; Motte 2006). Actions may focus on infrastructure investment choices, land use regulation principles, or environmental principles. This approach requires specific governance adapted to a multi-sectoral project. This governance is one of the delicate points of strategic planning. Consultation leads the actors to formulate a strategy with various objectives that the project must achieve. The traditional objectives of project planning are to value its cost, traffic, frequentation and commercialization forecasts, completion time, and expected service quality. Other objectives are also included, such as environmental (reduction of greenhouse gases), social (improving accessibility to employment), or economic (supporting an urban renewal project, contributing to national or regional economic development. The decision-making process for this form of planning is a rather closed system based on the participation of elected officials, the economic community (through partnership contracts or development concessions), and experts. Agreements can be signed between partners to mark the milestones of the decision-making process and formalize the stages of the project. Strategic planning can be implemented by adapting the expected results to the changing social or economic context over time and by adapting the results to the available resources. The methods for developing the national infrastructure scheme have remained the same: cost–benefit analysis, multi-criteria analysis, and scheme development. Traffic and profitability forecasts support these projects. These were no objectives to be achieved, but criteria to support decision-making. On the other hand, time-saving and accessibility objectives were posted in the specifications and had to be respected. The objectives desired by elected partners and technicians were not always compatible, which could lead to concessions on one side or the other. In the field of urban planning and development, studies were performed based on statistical forecasts (demography, employment, etc.), a needs analysis, equipment, offices, premises, necessary housing, and a plan. Strategic planning has been subject to criticism within the society. In particular, the promoters of projects not selected underlined the discrimination they could be victims of. Environmental groups have spoken out against some projects, toward which much effort was directed, but which they considered harmful. The notion of strategic planning is a subject of debate in the scientific community, both in Europe and North America. In Europe, the debate since the 1960s has focused, in particular, on the criticism of rational planning, then on the position of the planner within a planning procedure that increasingly integrated the civil society, and finally on how to achieve the objectives of the planning process, which concerned one or more projects, and the expectations compatible with the society as a whole. Part of the society could not feel concerned by the objectives pursued and the projects envisaged. This last question gave rise to the production of three currents: institutional, communicational, and interactive. This last trend, which dominated in the 1980s and 1990s, no longer analyzed the decision-making process by focusing on the planner, but on all the actors in the process, “dominated,

dominant, present or absent” (Motte 2006). 6.4.1.3. Collaborative planning Collaborative planning, developed in particular by Patsy Healey (1996) who studied the British case, highlighted the exhaustion of traditional planning focused on conflict management because it results from vertical, sectorized public policies developed by the State for local authorities and potentially generating local disagreements. It proposed another model, collaborative planning, based on horizontal, multi-sectoral, and multi-partner public policies. This model has been studied in the case of spatial planning in metropolitan areas for about 20 years. Actors and civil society (business, public, nature conservation associations, etc.) can develop relationships, work together on ideas and strategies, and develop common objectives within networks of relationships. This way of working, described as urban and regional governance, also corresponds to the changes (Motte 2006): – public authorities contribute to territorial development and are no longer just providers of public services; – decisions are no longer made not only by “integrated government” but also by various forms of governance: public, private, and mixed; – the “central organs of government, elected officials and interest groups” are no longer dominant and leave more room for regional and local bodies; – hierarchical and bureaucratic forms of organization are giving way to “interactive forms of governance”. Alain Motte stressed that the planning process is no longer only linear and segmented (separation of the development, decision-making, and implementation phases). It also becomes iterative and can cover several action themes and their implementation. The latter do not always have the same temporality and do not involve the same actors. The difficulty of coordination between actors can come from a wide variety of public and private coalitions and institutions. To co-ordinate actors, it is necessary to learn from these coalitions, as actors will not learn simultaneously from one another. This planning model has also been called Strategic Spatial Planning. Alain Motte (2006) summarized the essential characteristics of this spatial planning, which we have classified as follows: – it focuses on a limited number of issues; – it focuses on the context (consideration of the environment, analysis of its strengths and weaknesses, analysis of pre-existing trends in context and available resources, etc.); – it is multi-partner (identification and involvement of public and private actors involved in the project); – it develops long-term strategies that take into account uncertainties and competing

values. This planning is based on an evaluation and revision of decisions, actions, and results; it is also based on an analysis and development of new coordination between actors, and new organizational modes to implement strategies. In France, the decision-making and planning process has gradually opened up and involved stakeholders other than the State, local authorities, and experts. The Bianco circular of December 15, 1992, on the conduct of major national infrastructure projects set up a public debate that allowed the public and associations to express their views and to make comments that could be taken up by experts and technicians. The State and public project owners continue to lead the decision-making process and the coordination of stakeholders up to the DUP. They are further behind if the project is financed by a public-private partnership. The private owners then take over. The public inquiry report includes the public’s counterproposals since 2011. But at the same time, the right to appeal against the illegality of local authorities’ consultation procedures has been reduced in the case of housing, commercial center, offices, project, etc. The experts carry out the usual socioeconomic studies in the case of major transport projects, and a forecast balance sheet in the case of a JDZ project, supplemented by risk studies related to partnership and development concession contracts if this option has been chosen, and by an impact study open to proposals from the public. These working methods are complemented by consultation and negotiation between the various actors throughout the project life cycle. The decision-making process can also be informal. Local elected officials can make informal representations to the government in the case of major transport projects. Local elected officials can also form coalitions for or against their counterparts carrying out a development or a JDZ project and act discreetly in this direction. Associations can also lead to this type of action. This model may have found limits. In a collaborative planning context, the question arises about the development of plans and schemes inherited from traditional planning. This issue was analyzed in the case of metropolitan planning. Healey’s (1996) work showed that these plans are made up of various themes resulting from the compromises made to resolve conflicts of interest and that they are often fragmented. The question pertains to establishing a global planning on the scale of a metropolitan territory. The important theoretical debates in metropolitan planning focus on the transparency that the debate can bring to a decision and the scale at which these debates can be conducted depending on the issues addressed. This planning model also has limitations. Projects can sometimes be seen as a political blow because of the political support they receive. This support can take the form of pressure on the public authority to formalize each step of the procedure through an official decision in parallel with ongoing consultation and thus make the decision-making process irreversible. Consultation can then be perceived as a “simple” negotiation with the public to better integrate the project into its human and natural environment. Fainstein (2000) pointed out, among several critics, that this model, which does not assume

consensual relationships between actors, ignores the role of power and powerful people who have the capacity to hinder concerted action. The collaborative process can simply become a talk show without producing valuable ideas. Fainstein points out that experts who work from their ideas find better solutions than partners acting in a collaborative process. Pennington (2000) added that collaborative planning limits innovation because good ideas must be approved by a general consensus, which is sometimes difficult to obtain. Moreover, it is not possible to involve every person in the decision-making process. Achieving coordination through debate requires ignoring crucial forms of knowledge which are only revealed through action. The only collaborative process can, therefore, be counterproductive. 6.4.1.4. Flexible planning Flexible planning considers transport infrastructure planning, in particular, as a participatory process that can be adapted to changes in the project’s gestation context. This model developed in the United States, in particular, after the construction of the Interstate Highway System in the 1950s and 1960s led to a public outcry over urban sprawl and the destruction of urban communities affected by the projects (Gifford 2003). It can be based on the use of monitoring tools that develop and maintain performance indicators, monitor options and opportunities, present themselves to the project, and assess its environmental, economic, and financial viability (Gifford 2003, p. 232). This model addressed the issue of risk by criticizing the risk approach taken with cost– benefit analysis, and risk probability calculation in the decision-making process. It showed that cost–benefit analysis is not necessarily reliable because it evaluated the costs and benefits of a project in an uncertain way due to imprecise measurements, subjective expert judgment, inaccurate contexts, and other factors that introduced uncertainty into the analysis. Poor knowledge of demand and changes in people’s preferences over time were also sources of uncertainty. Gifford also criticized the probability risk assessment by pointing out that this assessment did not necessarily make it possible to calculate a probability if we do not know the detailed process of producing the damage or risk. We consider that these models can work simultaneously, in an integrated way, for the same infrastructure, development, or urban planning project. A collaborative planning phase can precede a phase of determining a strategy and planning objectives and be part of a process of flexibility and adaptation to the context. The clear delineation of the use of each model over time seems difficult.

6.4.2. Positioning of contemporary planning and project design modalities in relation to theoretical models 6.4.2.1. Planning models and literature do not take into account risk and uncertainty analysis The strategic, collaborative, and flexible models integrate the long-term planning based on

the transmission of information and possible coordination between actors. These practices can allow actors to adapt as much as possible to unforeseen and changing contexts. Collaborative and flexible models allow a progressive conception of the project and its challenges by the actors. Alain Motte (2006) notes that planning strategies can take into account uncertainties and be subject to monitoring and revision to adapt. However, literature on planning theories is lacking on the nature of these adaptation strategies; on the role and complex relationships of the actors to implement them; on the flexible and at the same time procedural aspect of planning, evaluation, consultation, and design practices that integrate risk; and, above all, on the important role played by uncertainty and risk in the heritage conception that many associations have about planning and urban development. Moreover, the tension that appears between the traditional practice of the strategic plan or the layout scheme that sets medium-term objectives at variable scales and a project decisionmaking process that is ultimately quite iterative, concerted, multi-scalar, and unpredictable implies a possible uncertainty in this process, which strategic planning does not address. In addition, there is a highly evolving contemporary context marked by uncertainties, risks, and opportunities, which give greater weight to the rules set by institutions (and the possibility of litigation), and to a more frequent perception and exploitation of risk by stakeholders to assert a position. Nor does collaborative planning address these aspects. Moreover, in collaborative planning, the questions of public participation, the collective construction of objectives for the territory, and the modalities of cooperation and relations between actors are considered with the share of chance that can result from deliberative processes, but without considering this as an “uncertainty” or a “risk”, with its causes and consequences for the decision-making process and for the project. These works provide fundamental elements for the knowledge of the conditions and modalities of the functioning of consultation and public debate, but their purpose is not to deal with the other risks and uncertainties that can make up the system, such as environmental risk, institutional risk, financial risk, and so on. The flexible planning model was theorized in relation to the context of social contestation (and social uncertainty) of the conditions under which the American highway network is built. However, it does not define the political, institutional, economic, environmental, and financial risks and uncertainties, does not detail their integration into the planning process, and remains confined to the case of the United States and its institutional system (Federal State, Federated States, large metropolitan areas, etc.) with its particularities. 6.4.2.2. The collaborative planning model and literature do not take into account power relationships resulting from the use and treatment of risk Contemporary project planning, decision-making, and design practices are based on power relations, as shown in the case studies developed in Chapter 4, but the collaborative model ignores them. 6.4.2.2.1. Synthetic approach to power relations

The decision-making process for infrastructure, development, and urban planning projects is based on the development, maintenance, and defense of the interests and objectives of autonomous actors, each with a specific role. The power relationship is an integral part of the decision-making, planning, design, and implementation process. It can take the form of a compromise, or even a consensus, or a dispute, or even a rupture. These power relations exist at all times in the decision-making process, are observed at all levels (local and national) of the decision-making process, and exist between all categories of actors in an uncertain and uncertain context. These power relations, which pit “dominant” and “dominated” actors against each other, seem to show that the theoretical definition of collaborative planning is getting richer and even changing. Indeed, it considers the relationships between equal actors, without “dominated-dominant” relationships. The participatory and deliberative model of democracy (in which collaborative planning is embedded) is based on the relationships between free and equal citizens. However, conflicts may exist between them (Gualini 2015). Moreover, even if the individuals are equal in rights, the resources and power create inequalities (Rui 2013). There may, therefore, be power relationships between “dominant” and “dominated” individuals, as these groups may have a particular role at one time and another at another. These power relationships can last for months or years. They can also evolve over time, depending on the issues and controversies. The case studies in Chapters 4 and 5 show that power relations develop on the basis of the control, creation, and exploitation of areas of uncertainty. The existence of these power relations positions contemporary planning and project management differently from theoretical models and raises new questions. These relationships may involve actors whose institutional position or skills give them the power to develop a planning strategy, finance a project, and take decisions (local or national elected officials, development SPLs, public works owners, etc.). The State may also exert financial or political pressure on the other actors involved in a major transport project, but with the difference that it retains the role of the arbitrator who must advocate a compromise solution. Actors with political weight and the ability to mobilize networks of elected officials or associations (sometimes national) also have an effective means at their disposal to win their cases. Power relations are also the responsibility of actors who have financial resources and can finance studies, initiate land acquisitions, and participate in financing the project, such as local authorities. Some associations have been able to raise significant funding to finance studying a recourse. These relationships can also involve actors who create their own power for themselves, for example, by staging the issue of a territory at risk and placing it at the center of the debate or consultation. These actors then create and control an area of uncertainty for their purposes. These actors also know that the project owner and the public authority need them to advance the project and the decision-making process under the right conditions. Other actors give themselves power over others by rejecting the project owner’s proposals, without creating controversy. These might be expropriated owners or farmers. Here, again, the project owner

(particularly private) needs to move the project further according to a precise timetable. Power is also on the side of those who can or know how to create the right area of uncertainty and controversy at the right time and influence the decision-making process and project planning. Actors use these power relations to assert their interests or objectives because they believe that they are threatened (local elected officials, State, association, etc.) or that the opposing actor is too dominant in fact. These power relations generally lead the demands of the “dominant” group to succeed. Local elected officials often obtain the services required for a transport infrastructure. Nature conservation associations that decide to appeal can achieve, for example, the cancelation of the DUP or of an administrative decision and can delay or lead to the cancelation of the project. Owners who are reluctant to sell may be able to sell their land at a higher price than the market price. As a member of the project owner of an HSL wishing to remain anonymous points out, the project owner agrees to overvalue a property or to satisfy requests for road restoration in order not to create unnecessary conflict and maintain the schedule. In these cases, there is nothing that can be called a negotiation. Power relations lead to the desired (or almost) result by the “dominant” actor. The “dominated” actor gives in by tactic or administrative obligation. However, it should be stressed that the negotiation between actors can continue to exist on the collaborative model with equal relations between actors, but this can take place in a postlitigation context. Negotiations can be found on themes identical to those covered by power relations (location, nature of the project, financing, and nature protection). This negotiation can result from controversies involving actors on an equal footing, without one putting pressure on another or submitting it to an ultimatum. In the case of major transport infrastructure projects, the groups of actors most involved in these power relations are, in chronological order, local elected officials who want a project that corresponds to their needs and strategy during APS studies, environmental protection associations during ongoing consultation, and during the public inquiry and then in the event of appeals after the DUP. Local elected officials can also issue an ultimatum to the State to sign the financing agreement and banks mark their payments of the loans according to the respect of the schedule of works by the project owner. The State may have to exercise its role as an arbitrator throughout this process. In the case of development and urban planning projects, local authorities take the initiative for the projects, carry out the first studies, and launch the public inquiry, which puts them in the position of pilots. Power relations seem to be more a matter for the public and associations when they create an area of uncertainty in relation to an environmental or social issue, place it at the heart of the debate with the local authority, and use it as a basis for litigation. In the event of opposition or litigation, the municipal majority may tend to stop a project because continuing it could jeopardize re-election. It may also decide to freeze a project for a period of time for the same purpose. However, the examples in Chapter 4 show

situations where the local authority enters the power game due to bearing the cost of land assets, which it has sometimes assumed for several years. In this case, bearing the cost of land assets is becoming increasingly expensive for the local authority, which then needs to sell land to generate revenue to cover all or part of the cost. The local authority then enters a power game by not giving up the project. It faces appeals by adapting the project (a little) and renewing the PLU modification procedure, which can trigger a new appeal. Adaptation of the project according to the associations’ requests may remain limited because the local authority (or the development SPL) needs to sell the land to builders who are interested in marketing the planned project. 6.4.2.2.2. Which power relationships show this paradox? Current programming and planning are project-specific, and address a variety of issues at multiple scales. These objectives may pertain to project management (cost, time, quality, etc.) and cover very different areas due to a large number of actors involved in the decisionmaking process who can address these issues jointly or separately. They concern environmental protection, local economic development, accessibility, urban development, local landscape integration, and protection of local residents. A large number of issues raised by many actors is an initial paradox. Indeed, collaborative planning is based on a limited number of issues. Many current territorial issues are set up as zones of uncertainty, or risks, that only the public and associations can control, which can make the project owner or developer who has not assessed this zone of uncertainty in the studies unaware. The planning and the production of projects were under political, but mainly technical and financial, constraints some 20 years ago. They are now under technical, financial, political, environmental, and social constraints. These constraints can be contradictory. As they are carried by different actors, this can lead to power relations. For example, a project owner is responsible for the cost of a project and may have to limit the number of adaptations to the project requested by the public, which can lead to controversy and litigation. Currently, planning can be applied to larger territories, particularly because of consultation and environmental issues. Recent developments in the legal framework for public debate and public inquiry, ongoing consultation, and the possibility for the expert to integrate impacts identified by the public into the impact assessment and territorial issues identified by the public in the multi-criteria analysis have opened up the decision-making process to all stakeholders involved in the project. Public comments collected during the public inquiry and an analysis of the proposals and counter-proposals produced during the inquiry must be included in the Commissioners’ report. The latter must take into account all these elements, whether favorable or unfavorable to the project, in order to give their opinions on the public utility of the project. In addition, if the project requires substantial modifications revealed during the investigation, it may be suspended for 6 months. A further public inquiry into the advantages and disadvantages of these changes for the project and the environment may also be organized. These opportunities represent opportunities for an association to present counter-expertise, integrated into the impact study and/or multi-criteria analysis, in the opinion of the investigating commissioners. Public or private owners and developers can also

provide complementary elements of expertise, which may or may not be in the direction of associations. These openings in the decision-making process can, therefore, lead to power relations through a game of dissemination, and submission of expertise and counter-expertise – irrespective of the actors having a competence or an institutional, or a contractual role. With associative expertise, the public not only becomes “equal” to the expert but also has the power to litigate. The development of associative expertise depends on the existence of professional militants with geological, financial, socioeconomic, environmental or technical expertise, or significant financial resources (such as the million euros obtained by the associations defending the Nonant-le-Pin site after the sale of stallion sperm) to call on experts. The project owner or developer can respond by using his expertise on project optimization, which leads to carrying out the project anyway by adapting it to respect his contract (if this is the case), or by avoiding a risk of additional costs related to an excessively long-term bearing of the cost of land assets, risk of delay, social risk, and so on. However, the associations have the power to litigate, which represents a significant risk of blocking, overcosting, or cancelation for the project owner. It may be noted that major transport projects – whether or not they are contracted for and subject to recourse for their potential impacts – are generally completed but with delays and/or additional costs. Contested development and urban planning projects, whether or not they are contractualized, often give rise to recourse, as shown in the examples in Chapter 4. It also shows that associations have the “dominant” role at this point in the process. The appeal can be triggered at any phase of the project requiring an administrative decision. This can generate a surprise effect and create a situation of uncertainty that is very uncomfortable for the project owner. The notion of engagement is also at the heart of the project planning and design process. According to the Larousse dictionary, engagement can be defined in two ways that are relevant to this reflection. On the one hand, it can be defined as “an act by which one commits oneself to accomplish something: a promise, a convention or a contract by which one binds oneself” and, on the other hand, as “the act of taking sides or intervening publicly on social, political… problems of one’s time”. The first definition may correspond to the commitment of the project owner, the public or private developer, the local authority, or the State that enters into a development concession or public–private partnership contract. The second definition can correspond to associations and the public who express themselves in favor of or against a project. This commitment persists over time because all the actors have objectives. Project owners and developers must carry out a project with objectives in terms of cost, time, and quality. They also incur liability with a risk allocation provided for in the contract. To be credible and achieve their goals, the public and associations must hold their position on the project and their impacts firmly, through media coverage, large-scale actions, recourse, and so on. The latter case, which is more frequent, is the ultimate commitment through the public positioning, financial resources, time, and energy that it imposes on actors. Environmental or political activism (e.g. against the financialization of projects) also reinforces this commitment, which is all the more easily built as the risk perceived or identified by the layman is more taken into account by the society. The application of the contract and the associative or militant commitment can logically produce power relations,

because of their conflicting interests. The contract also requires the private project owner and developer to carry out the project; otherwise, they are exposed to the risk of banks not paying the loan shares on the scheduled dates, paying penalties to the delegator, and postponing the collection of commercial revenues. Negotiations are possible. The interviews (anonymously) showed that penalties were not always applied in the case of development concession contracts and that missing commercial revenues can sometimes be partly offset by an extension of the concession contract for transport infrastructure or by an increase in the area to be built and sold in the case of a JDZ. However, the interviews also showed that the private owner and developer are very keen to deliver the project on time and on budget. They, therefore, implement the means to achieve this, but by trying to tame an associative or inhabitant opposition if it exists. On the one hand, there is the development of a technical culture of risk and a valuation of perceived risk, which can also induce power relationships. A risk culture has developed in project management. Interviews with public and private project owners show that they are sensitive to the same risks and both assert that regulatory risk, the risk of change in administrative doctrine (which refers to environmental issues), financial risk, social risk, and political risk constrain project planning and management the most. The learning process following the successes and difficulties encountered in recent projects has helped to strengthen a shared vision of risks between the private and public sectors. This risk culture means that risk factors are now often considered as initial data by the project owner (in particular, the possibility of conflict, the project’s impact on the environment, and the problem of funding distribution) and treated as such in risk matrices, contracts, and socioeconomic and financial evaluation by partners who seek to control them. Perceived risk is also more highly valued, and taken into account in environmental assessments and multi-criteria analysis. The professionalization of associations also allows them to highlight the project as a risk factor for the natural environment of the project thanks to counter-assessments and to put the project owner in difficulty by recourse. This approach allows associations to limit the risks they have identified. If everyone wants to control risks and they are contradictory, this can effectively generate power relationships. The notion of the individual is also at the heart of current project planning and management. It is not necessary to go back here to the general phenomenon, already widely described, of the individualization of society. Individualization corresponds to a desire for autonomy in all areas of life, particularly in relation to assigned institutions and affiliations. Individualism is defined rather as a desire to defend one’s personal interests, without worrying about others (Bréchon 2014). In an individual and individualistic society, an individual may have a greater tendency to express his fears or desires. We hypothesize (without being able to verify it) that this behavior and these interests may contradict collective interests, such as the realization of an infrastructure, development, or urban planning project. Logically, these two approaches can generate power relationships. Finally, power relations tend to get tougher. In recent years, there has been an increase in the number of “zones to be defended” or ZADs, either against major infrastructure projects (such

as Notre Dame des Landes airport) or against microprojects for malls, sports facilities (Lyon stadium), or waste sorting and storage centers (Nonant-le-Pin). These activists’ motivations can be environmental, but also economic (protection of a professional activity) or political (refusal of private sector intervention, financialization of projects, and criticism of the legitimacy of the public authority to take decisions on projects). The recourse procedures are also more intransigent. This allows opponents to identify a project’s environmental risks due to non-compliance with a text, principle, or standard. Associations and the public opposed to a project do not waive the right to make several appeals if necessary (more than 40 against certain projects) and to multiply them over time. We can also note the development of a certain virulence. This was the case, for example, during some of the No Tav movement’s parades against the Lyon–Turin HSL. The lawyer (or the magistrate) plays an important role at the center of these power relationships. Law firms specialize in advising associations, residents, or local authorities that are challenging a project and wish to seek recourse. Some of the websites of these professionals even contain a rather militant speech. An association or municipality (even a small one) calls on the services of a lawyer as soon as a dispute arises and does not hesitate to devote the necessary financial resources to it. The decision-making process can see the emergence of actors who establish power relations based on the treatment or construction and exploitation of risk to advance their objectives or interests. The actors are not necessarily “equal” to each other. The power relations that can require the project owner to take into account certain issues mean that these issues are not always built in a collaborative and consensual way. The “dominant” player is not necessarily the State or the one with the power of technical expertise. It can be a local elected official, a group of local residents, or a nature conservation association.

6.5. Conclusion The decision-making, planning, and design processes for major transport projects and development and urban planning projects in France have for several years been open to multiple actors from civil society, the formalization of environmental protection, and the development of partnerships with the private sector, within which the requirements of banks and institutional investors encourage greater risk management. The decision-making, design, and planning process is therefore confronted with two sometimes contradictory injunctions: using procedures to better manage financial, social, political, regulatory and environmental risks–and opening up to points of view that are sometimes different from those of the technical expert, and, in particular, to areas of uncertainty raised by stakeholders, and dealing with the resulting hazards and modifications to the project. These practices are also sources of new risks, which were not anticipated by texts published in the 1990s and 2000s, and make it possible to discuss the planning envisaged as a strategic plan and collaborative planning between actors, which raises new questions and encourages us to consider new paths for action. This is the purpose of the general conclusion.

1 Source: RFF interview, February 5, 2014. 2 The level of traffic on line A carried over to Météor or Eole determined the sum of the time savings generated by each project, which was one of the determining elements in calculating socioeconomic profitability. 3 The layout of Line E changed slightly northeast of Paris in subsequent studies. 4 Six solutions were proposed in this first study, all based on the reflections of existing operators (SNCF and RATP). 5 Practitioners call this dossier the dossier loi sur l’eau (water law dossier). 6 Source: A’liénor company interview, January 22, 2014. 7 Source: Sepanso interview, January 24, 2014. 8 Source: ibid. 9 Source: Interview with an associative activist who wished to remain anonymous, December 2013. 10 Source: A’liénor company interview, January 22, 2014. 11 A butterfly. 12 Source: GIE CLERE interview, November 19, 2013. 13 According to Sepanso, the amount requested by the concessionaire was calculated in relation to the delay attributable to the triple passage in front of the CNPN and the delay it reportedly experienced in expropriating owners disappointed by the price level offered. The concessionaire did not confirm this point. 14 Decree of September 1, 2010, approving an amendment to the concession agreement between the State and A’liénor for the design, construction, maintenance, operation and servicing of the Langon-Pau section of the A 65 highway and the specifications annexed to this agreement (JO of September 4, 2010).

Conclusion: Ways Forward for Action Contemporary project decision-making, planning and design modalities, and practices show that certain precautions can be taken to avoid the emergence of new uncertainties and risks and to develop trust between parties.

Is it necessary to take significant risks to carry out projects? Uncertainty and risk are inherent in projects for several reasons. These are long-term projects. A transport project easily extends over several decades between the political idea of carrying it out and its commissioning. A development and urban planning project extends over several years, or even more than two decades if it is a JDZ of several hundred hectares. A long period of time does not allow us to know in advance all the risks that may arise. The project may encounter marketing risks, adaptation to needs, and so on. Archeological risk is difficult to predict. There is no mapping of undiscovered sites. There is, therefore, the possibility that preventive excavations may lead to the discovery of a site whose analysis could block the project for years to come. The institutional risk of regulatory change is also difficult to predict. This may lead to a review of studies or to the illegality of a project of a pre-regulatory design. Even if these risks can be addressed with appropriate methods (assessment and risk matrix) or adaptive practices (risk provisions and project plasticity), is it necessary to take significant risks to complete a project? Considering environmental, social, or financial risk depends on the political decision to carry out a project. However, the environmental impacts of projects cannot be offset in all cases in the future because land availability is limited. According to some interlocutors, the surface offsets of recent major transport projects are already overlapping. In practice, the responsibility for the potential financial risk of the contracts may lie with the public authorities, which guarantee a large proportion of the loans made by certain concession companies, which ensure the takeover of the concession in the event of the private partner’s bankruptcy, or which ensure the bearing of the cost of land assets of certain development operations. Bearing this responsibility could be done at the expense of other public budgets or at the cost of an impact on taxation or public debt. Many local authorities refuse to assume this risk in contracts. Therefore, there are concrete limits to the multiplication of projects, particularly when their location conflicts with environmental principles. This situation logically leads to an assumption of social and political responsibilities leading to reasoned environmental, social and planning choices, particularly concerning the nature, location and height of the project soil artificialization, urban sprawl, and the preservation of the natural and human environments. These guidelines are already included in texts. The

actors’ responsibility does not only concern risk-taking related to projects but also the implementation of means to assume these reasoned choices.

How to take into account social risk and the risk of litigation? The risk of controversy and litigation has become a common risk. More and more associations are opposed to projects and they are becoming more professional and active. Associations of national scope can be found which capitalize on experience in studies and appeals and have a certain representativeness to support positions with elected officials and institutions. The interviews also showed that project owners, public and private developers, local elected officials, and the State are seriously concerned about these controversies and oppositions, which can cause a social risk or litigation. The more sustained legal framework for consultation and impact assessment is also a sign of the State’s concern to try to build trust between project leaders and the public. The trend is also, in some cases, toward militant, organized, and sometimes harsh opposition, which must be taken into account. Social uncertainty can arise from the very first studies, in the event of concern on the part of local residents. It may also occur later, on the occasion of an appeal against an administrative decision. Associations can thus develop strategies. Not saying anything during the public inquiry, not presenting arguments too early, and bringing a dispute in extremis allows an association to surprise the public authorities, the project owner, or the developer. Considering the risks of controversy and recourse as a construction and anticipating them from the beginning of the project seems to be a way forward. SNCF Réseau conducts a territorial context study and proactively identifies, from the preliminary studies of railway line projects, the hard points for consultation that could become sources of social risk or litigation. This approach can be adapted to development and urban planning projects, which also have the advantage of being one-off projects and involving fewer local actors than highspeed lines that cross dozens of municipalities, several departments and various regions. It can be superimposed on traditional consultation.

How to locate a project in relation to social risk and the risk of litigation? The question of the precise location of the project should also be considered from the beginning of the studies, in order to avoid areas at natural risk or risk for the environment, and by domino effect the areas at risk of litigation. For example, we can still see development and urban planning projects located in floodplains that are likely to cause a challenge based on texts and fear of the threat. In flood risk areas, the zoning of the flood risk protection plan may be more or less restrictive for building permits and it is legally possible to build housing in some of these areas (low or medium risk), provided that appropriate construction measures are used (e.g. pilings). Operations located on natural land may also be challenged and

appealed if they do not comply with the provisions of Act No. 2014-366 of March 24, 2014 on access to housing and renovated urban planning, known as the ALUR Act. Transport infrastructure projects can be located in natural areas with protected or iconic natural species. Crossing these sensitive areas may give rise to appeals, particularly if the compensatory measures are considered insufficient by associations. A thorough preliminary study of the possible sites for locating the project and their legal constraints (natural area, classified area, natural risk area, etc.), therefore, seems necessary. Even if construction is possible on these sites, the existence of regulations related to risks to the population, buildings, or the protection of natural areas can lead to controversy and recourse. The idea would be to decipher the sites where recourse, even if uncertain, is possible. This can make it possible to carry out urban planning that is compatible with current trends in terms of densification, the use of hollow teeth and urban wasteland, while promoting housing and business premises closer to public transport than new buildings built on the periphery. Studying the possibility of carrying out a project by renovating and adapting an existing construction or infrastructure can also help to limit this social or political risk (sometimes associated with the appeal) caused by a new infrastructure.

How to adapt a project to a random environment? To adapt a project to a random, particularly cyclical, environment, the possibility of the project’s anticipated (and not suffered) plasticity may be interesting. The plasticity undergone by the project corresponds to a physical evolution (nature, form, volume, layout, and location) of the project as a last resort under the constraint of risks for the developer or project owner. Anticipated plasticity results from a proactive approach to project monitoring that seeks to adapt the project to hazards and prevent others from arising. The plasticity of a transport project is constrained by the 1 km wide (preliminary study phase) and 300 m wide (detailed design study phase) corridors within which the route is defined. Optimization can lead to changes in this route within these corridors. On the other hand, it is rather difficult to envisage a detour due to the increase in the length of the infrastructure, the increase in travel time, the additional cost involved, and the need to repeat studies. The loss of performance that could result for users is not mentioned (especially highspeed trains, which are very demanding in terms of profile). In the case of urban planning projects, this approach consists in providing for minimum and maximum volumes of the project buildings, functions that can be adjusted according to the economic situation, which allow, as much as possible, a mixed or reversible use of buildings, and so on. The public authority may have an interest in setting thresholds or ranges for offices, housing, and shops (e.g. to mark its strategy and meet social housing thresholds). Consultation with the public can then focus on the proportion of housing or offices or businesses, public spaces, the nature of cultural or sports facilities, and so on. This approach already exists, for example, for large JDZs in station districts. This approach has its limits. Indeed, not everything can be put into consultation at any time.

When the economic situation is bad, and a building is already built, it is technically not possible to convert an office building into housing and vice versa because of different standards (e.g. ceiling heights, dimensioning of emergency exits, etc.). These choices must, therefore, be made before construction, and the building must be marketed quickly to avoid a risk of the operation yielding low profitability. It may be noted that, in the case of JDZ projects, local authorities tend to bear the cost of land assets, including over long periods of time, for direct labor operations or development concessions when an economic crisis is looming. The latter delays marketing the operation. Through feedback, local authorities (especially the better endowed) can continue to bear the cost of land assets and expect better conditions to sell land to developers so that they, in turn, can sell offices, housing, and businesses without delay and are not penalized by insufficient marketing revenues. The financial risk of the transaction can, therefore, be covered in some cases even if the cost of bearing it for a local authority and for taxpayers can be discussed.

What to do with old projects planned in a regulatory framework that is not adapted to current rules? About 10, 20, or 30 years ago (in the case of some transport projects), projects were sometimes considered in a different regulatory context but could not be implemented. New regulations may now apply to these projects. They may, therefore, be the subject of litigation on this basis. This is the case, for example, with some highways or high-speed lines planned in the 1992 national road and rail master plans, which were recently carried out without public debate. This may also be the case for old urban planning projects or sports facilities planned some 15 years ago on agricultural land and then contested. A reflection on the current relevance of these projects in terms of regulation, the risk of litigation, and their location would be worthwhile. Regular monitoring and updating of planning documents against these criteria seem to be useful. This can lead to early questions about the usefulness of the project and the need to reassess, modify, or cancel it.

How to better territorialize project planning and design? Project planning and design is already territorialized. It seems possible to go further by combining three approaches in a context where rules can also be used to anticipate risk chains beyond the risk of litigation in the medium term. We can think of a fairly classic risk chain: the project creates a risk for the natural and human environments perceived by associations. This causes a dispute and litigation (social risk) and then a delay to the project of several years. This delay causes additional costs related to the cost of land assets, the increase in the price of raw materials, or a risk of unprofitability if commercial revenues are delayed. These risks may be in addition to unpredictable events such as archeological risk, institutional risk, or the risk of economic downturn. Risks can also be taken if the project does not meet a specific need in the medium term. For example, a project carried out more to enhance the value of a city in a context of competition between

territories or agglomerations, to display an innovative infrastructure or for a major event, than to satisfy a local need may not be accepted by the population, may not be profitable over the long term, and so on. Beyond the impacts and severity of a risk, the analysis can also focus on the potential secondary risks generated by primary risks (such as social risk). The project owner is already doing this. This approach can be interesting in the planning phase for local authorities and the State. It is in line with a reflection on the adequacy between the location of projects and the application of regulations, particularly environmental regulations. Mapping these risk chains over time and space (by locating project sites, locating areas affected by regulations, and locating potential dispute and litigation nodes) can help to represent them. Anticipating potential opportunities related to these risk chains can complete the mapping. For example, this may mean finding localization sectors that are compatible with regulations or finding project flexibility that is adapted to cost constraints.

What role for the plan? In a context where risk and uncertainty take on greater importance in relations between stakeholders, in project planning and design, the documents which are important for decision-making are those that present the characteristics of projects taken individually (JDZ creation file, APD studies for transport infrastructure) or as a whole (report of the Infrastructure Steering Committee of 2018, SCOT), or specify the rights to build (such as the PLU that must remain precise on zoning and land use rights because it is enforceable against third parties or such as a risk exposure plan). By their nature and the information they contain, these documents are subject to discussion, controversy, recourse, and negotiation. Rather, the plan has a role as an adaptable guidance document. The SCOT presents land planning or urban planning orientations, without always locating them precisely. It can be updated every 6 years. This update is made according to the progress of the JDZ or urban planning projects. In the field of transport, the 2011 National Transport Infrastructure Plan has never been approved, and no new versions are expected to be presented in the near future. Developing plans, therefore, seem to be becoming less important for this type of project. The report of the Infrastructure Steering Committee, drawn up in 2013 (Mobility 21) and updated in 2018, instead of the National Transport Infrastructure Plan, sorts projects according to their cost and collective utility and serves as a reference document for the State and local elected officials. The question is whether such a document that can be adapted to projects and their pace of design and implementation becomes more a reference document than the Plan. The margin of maneuver allowed by the compatibility (and not conformity) report between planning documents can make it difficult to apply the qualitative guidelines of higher-level documents such as the reduction in greenhouse gases, modal shift, limitation of soil anthropization, economic development, improvement of accessibility, and so on. Certain

planning conditions also allow room for maneuver. For example, it is not prohibited to carry out development projects in Natura 2000 areas, but they must be compatible with the conservation objectives for habitats and species on these sites. The potential contradiction between the qualitative orientations of schemes and the project characteristics allowed by the compatibility report also questions the scope and weight of these schemes. In any case, it is necessary to consider a balanced project design and planning, which takes into account the strong public sensitivity to environmental protection, the multiplication of projects, their cost and the constraints of local authorities, the State, project owners, and developers, while the legitimacy of institutions and private partners to act in the general interest can be criticized by some of the actors.

Appendix: The Identification, Evaluation, Prioritization and Treatment of Risk by the Project Owner, Developer or Promoter There are four steps in project risk management.

A1. Identification: defining of the types of risk – Financial; – political; – social; – institutional; – environmental; – archeological; – image-related; – safety and security; – technical; – construction-related; – force majeure. Identification is carried out by means of a risk review in the presence of all the project’s technical actors. It makes it possible to identify potential risks. However, project management only retains the risks that have significant consequences for the project.

A2. Evaluation Evaluation focuses on the probability of the risk occurring and the severity of its impacts.

A2.1. Analysis of the probability of risk occurrence An example of a probability scale is given in the following table. Example of a probability scale 4 >30% Probable to highly probable Very high 3 10%–30% Quite unlikely to probable High 2 2%–10% Very unlikely to quite unlikely Average

1 x million euros 3 X–x million euros 2 X–x million euros 1