Climate rights were formalized at the Earth Summit in 1992, from which emerged the United Nations’ Framework Convention on Climate Change. Subsequently, civil society has shown its interest in facing the challenges of global warming. Thus are born coalitions of organisations to promote climate justice — particularly through litigation.
According to Markell and Ruhl, climate change litigation can be defined as follows: “any piece of federal, state, tribal, or local administrative or judicial litigation in which the party filings or tribunal decisions directly and expressly raise an issue of fact or law regarding the substance or policy of climate change causes and impacts.” In all cases, the litigation can concern two types of actors: states and firms, anywhere in the world.
And there have been a lot of victories in recent years. Such as Urgenda Foundation v. Kingdom of the Netherlands (La Haye District Ct, 24th June of 2015); and Ashgar Leghari v. Federation of Pakistan (Hte C. Lahore, 4th September of 2015), which denounced the inaction of the state; or Colombia, South Africa and Australia concerning harmful climate projects (the first of which led to obligations being placed upon the Colombian government by the Supreme Court on 5 April 2018 to stop deforestation).
The best success was the Urgenda case, which in 2018 created an obligation of vigilance in matters of climate. In fact, this contentious appeal went to the European Court of Human Rights (ECHR), which affirmed the previous judgment, stating that the Dutch state had not done enough to fight against global warming, and must act now with determination and efficiency. In particular, it corroborated that the Netherlands should indeed aim to target a 25% reduction in CO2 emissions by 2020 to meet its obligations to the Dutch people and the world.
So, in the absence of international binding agreements and jurisdictions, environmental law is now constituted primarily by the litigation that is developing before national courts. Thus, with the “l’Affaire du siècle” case, launched by four NGOs (Oxfam, Greenpeace, Nicolas Hulot Foundation and Notre affaire à tous) before the Administrative Tribunal of Paris at the beginning of 2019, France joins other states in the line of legal fire.
Nonetheless, this type of action isn’t new in the country, insofar as there have already been previous cases before the French courts: the operating licence “Guyane Maritime,” allowed by the administrative court of Cergy-Pontoise, to extract oil in Guyana and, conversely, the appeal for misuse of authority that was launched by the Grande-Synthe municipality. These types of actions occurred thanks to the environmental accreditation given to associations in 1976 by the French authorities, which enabled them to pursue regular litigation.
Two of the four NGOs involved in the “l’Affaire du siècle” case have this accreditation, namely Greenpeace and the Nicolat Hulot Foundation. But aside from Greenpeace, none of the other NGO plaintiffs have experience in environmental litigation. For that reason, “Notre affaire à tous,” a collective of lawyers, was created (two months after the Urgenda case) to launch an appeal against the French state. The goal of that group is the following: to reveal that France won’t achieve the objectives that it has set (knowing that those objectives are already insufficient); and to obtain compensation for the damage that is simultaneously moral, ecological and material. In this way, the four NGOs have mobilized the necessary legal tool to ensure cooperation of the French government in fighting climate change.
Initially, the plaintiffs dropped an earlier compensatory request that had been directed to the prime minister on the 17th of December 2018. Once the verdict was given, (i.e., the government’s negative response), the NGO plaintiffs then dropped their appeal on the 14th of March 2019.
C. Cournil, a member of Notre affaire à tous, explained that the summary request contains four parts:
Scientific. That is, concerning obligations related to climate change, deficiency of the State, and a request accompanied by the demand for compensation. This can be analyzed by two axes — global and national. Thus, in the effort to achieve their desired result, the NGOs argued in defense of environmental constitutional rights as well as fundamental rights, underlining the government’s inertia and the belated nature of its actions. They also cited scientific proof by way of the last IPCC Assessment Report. So, if the French state is not the only party responsible for environmental damages, the aim is to recognize its failure and then fault by demonstrating that it hasn’t met its obligations.
Definitely, there are French antecedents in environmental matters where failure leading to fault was recognized: on the green algae problem, the AZF factory explosion at Toulouse, the lack of prevention of harm from asbestos (when scientific facts had already demonstrated the risk), and the failure to apply the obligation concerning bears in the Pyrenees. Indeed, once eligibility requirements were fulfilled — i.e., a negative administrative decision, by an explicit response, and an interest to act (physical persons can defend a collective interest, such as the environment) — the appeal was launched. Therefore, there are arguments to be made in national law, international law, and comparative law. However, some French national lawyers have expressed reservations concerning the responsibility of the state. Admitting the failure of the state is more difficult in this case than in the previous cases. As a matter of fact, responsibility is the result of three elements that cannot be separated: a fault, a causal link, and a prejudice.
Concerning the failure that produces a fault, the NGOs identified the legal obligations of the French state in the Environmental Charter of 2004 as a general basis to act in environmental matters that will also be in accordance with several international agreements and European norms. So, if there isn’t French jurisprudencia in this field, these other juridic sources (national, international and European) — through decisions that define objectives for each state — can explain the obligations for France. However, NGOs must prove that they entail a performance requirement, and not only a directive.
- The causal link is a bit more complicated. Some jurists take into consideration the fact that the fault belongs to several states and not only the French state, which explains why the Dutch courts have recognized a duty of diligence of the state in order to make a link between fault and prejudice. More generally, the causal link does not have the same significance for scientists and lawyers. Although the last IPCC Assessment Report identifies correlations, the information it provides cannot constitute a causal link from the lawyers point of view. In this sense, C. Cournil said that “The scientific proof isn’t the legal proof,” which means that law supplants legal arguments in the appeals.
And finally, the prejudice that has to respect three criteria: be certain, direct and fixed. This is the most important sticking point. If there is no problem concerning the moral prejudice, it’s more difficult to prove its ecological and material dimensions. For the ecological aspect, which is recognized in civil right, it seems hard to demonstrate the damages suffered by nature independently of human damages. So, we expect the administrative judge to copy the civil right in recognizing the existence of an ecological prejudice. Secondly, for the material aspect, in relation to the criteria of evaluation of the damages — it appears very difficult to assess them exactly.
So, if the three elements that could make the French state responsible for climate inaction are flawed, it seems it will be difficult to obtain either compensation or an injunction of the state by the administrative judge.
Moreover, by saying “attack the state” or “sue the state,” the petition of “L’affaire du siècle” produces confusion between penal and administrative trials. Indeed, the trial will be administrative. And, above all, we can’t sue the state before any court, since the French state is considered an entity that cannot be condemned. So, there is a misunderstanding, because a lot of people who signed the petition expected they were questioning the personal responsibility of members of the current or former governments. This is a trial not of a person, but of an act: a unilateral administrative act.
In the same way, we can wonder, since obligations are mainly fixed by the European Union, whether the European Court of Human Rights (ECHR) should make objectives less ambitious and not allow state’s members to choose the means by which to reach them. So, pushing forward the right in an aim to struggle efficiently against climate change demands that we act first at the level of the EU. The French state has a responsibility to transpose EU directives and the enforcement of regulations, but the respect of European law does not depend only upon the state.
To conclude, the real question is: does the law really have a place in environmental politics? Contrary to the Netherlands, the French judge reserves the right to refuse to play this game, both because of its complexity and because of the real separation between the judicial system and politics — even if the petition has been signed by over two million people. According to the French Doctor of Public Law J.Bétaille, in a legal conference concerning “L’affaire du siècle” at Toulouse, the large media coverage of all those signatures may even be counterproductive: “the judge isn’t a technicien, nor a climatologist … or a decision-maker (…) solutions should be provided more by politic than the law”.
So, the objection of lawyers is not to the substance but to the strategy. This is a legal as well as a political action. Therefore, the French judge has prior reasons for refusing the appeal — because of French tradition that is hostile to the involvement of politics in legal matters. In this way, some lawyers fear a negative decision of the Court, since it could establish a bad precedent for all future appeals.
A better strategy, according to J.Bétaille, would be to begin with simple cases, as the French NGO France Nature Environnement did by initiating litigation with little cases before the administrative Court — and after that, with an appeal before the Council of State.
This conclusion is not pessimistic but realistic. Whereas trial courts and appellate courts are open-minded, the Council of State is still reluctant to enter the discussion. So, underlying all limits and misunderstandings of this affair enables to reinforce its credibility and future efficiency. Thus, after reading that article, you will be able to reconsider positively the supplementary facts that will be finished by the end of April — while remaining aware of legal considerations specific to France.
1. D. Markell et J.B. Ruhl, « An empirical assessment of climate change in the courts: a new jurisprudence or business as usual? », 64 Fla. L. Rev. 15, 2012.
2. Meredith Wilensky, Climate Change in the Courts: An Assessment of Non-U.S. Climate Litigation, 26 Duke Environmental Law & Policy Forum 131-179
3. Christian Huglo, Le contentieux climatique : une révolution judiciaire mondiale, Ed. Bruylant, 2018
4. C. Cournil, Les procès climatiques – entre le national et l’international, Ed. Pedone, 2018.
5. In an interview on the 4th of April 2019.
6. Above all, Julien Bétaille and Arnaud Gossement, specialists in environmental law.
7. I am referring to the EU definition of “directive”: a legal act of the EU that requires member states to achieve a particular result without dictating the means of achieving that result.
8. Prejudice means here a fact or condition which, if established by a party to a litigation, may defeat the opposing party’s case.
9. The IPCC prepares comprehensive Assessment Reports about knowledge on climate change, its causes, potential impacts and response options. The IPCC also produces Special Reports, which are an assessment on specific issues; and Methodology Reports, which provide practical guidelines for the preparation of greenhouse gas inventories. The last Special Report, published in October 2018, is notable because of its primary topic: the impacts to Global Warming from an increase of 1.5 ºC.