The French ‘case of the century’ ushers in new era of environmental litigation

by Louis Mason, Universal Rights Group Asuntos contemporáneos y emergentes, Blog, Blog

On 3 February 2021, in a historic decision that confirms the growing trend of civil society led public interest litigation founded on the right to a healthy environment, a French administrative court recognised that the French State could be held responsible for failing to meet its commitments to mitigate climate change. In an unparalleled outpouring of public support for the plaintiffs in the highly mediatised case known as L’Affaire du Siècle (‘The Case of the Century’), the motion filed by four civil society organisations (Greenpeace, Oxfam, la Fondation Nicolas Hulot and Notre affaire à tous) garnered the support of over 2 million French citizens through a petition denouncing the State’s inaction on climate change. The stage was therefore set for what the case’s public rapporteur called ‘the first major environmental case in France’.

In their motion, the plaintiffs alleged that the State’s failure to meet its greenhouse gas emission targets over the period 2015-2018 constituted an environmental harm that violated their right to a healthy and sustainable environment – a right guaranteed by the French Constitution and derived from the right to family life of the European Convention of Human Rights.[1] They therefore requested compensation for the moral and ecological damages resulting from this environmental harm and sought a Court order compelling the State to meet its obligations.

The Court’s decision holding the French State responsible for failing to meet its climate change mitigation commitments is groundbreaking on multiple fronts. First and foremost, it is the first time that a French court recognises the State’s share of responsibility for environmental harm stemming from its failure to meet its greenhouse gas reduction targets. In its reasoning, the Court found that the constant increase in average global temperatures and the resulting disturbances in the ecological functions of the atmosphere constitute an environmental harm. They then proceeded to examine whether a causal link could be identified between this harm and the State’s acts or omissions and concluded that the State’s failure to meet its own mid-term objectives for compliance with the Paris Agreement was partially but directly linked to the negative environmental effects of climate change.

Interestingly, like in the Urgenda Climate Case, in which the Supreme Court of the Netherlands found that the Dutch government had the obligation to urgently and significantly reduce its emissions in line with its human rights obligations (right to life and right to family life), the Court based its reasoning on the principle of common but differentiated responsibilities to find the French State in breach of its human rights and environmental obligations. This principle formalised in the UNFCCC acknowledges that while all States share the responsibility to address environmental destruction, more developed States, which have benefited more from highly polluting industrialisation, bear a greater share of the responsibility. Furthermore, from a human rights perspective and as highlighted by High Commissioner, Michelle Bachelet, these decisions confirm once more that ‘governments have binding legal obligations, based on international human rights law, to undertake strong reductions in emissions of greenhouse gases.’ They further signal to citizens around the world that their human rights can be wielded as powerful tools to hold governments accountable to their environmental obligations and commitments.

In contrast, in a similar case brought before the Supreme Court of Norway, the Court rejected arguments put forward by environmental groups and UN Special Rapporteurs alleging that the Norwegian State’s authorisation of oil exploration licences and the resulting environmental risks they pose, violated Norwegian citizens’ right to a healthy environment. Contrary to the French and Dutch judges, the Norwegian Supreme Court was reluctant to exert judicial oversight over legislative acts and stressed the Government’s broad discretion in defining environmental policies to mitigate the negative effects of climate change. While recognising the justiciability of claims based on the right to a healthy environment, the Norwegian judges highlighted that only the high standard of ‘gross neglect’ by the Parliament of its human rights obligations could have warranted the Court to challenge its decisions. Taken together, the two decisions demonstrate the growing stakes of legal contests to environmental policies and the potential for citizens to hold their governments to account for their environmental policies on the basis of their right to a healthy environment (amongst other inter-related fundamental rights). On the other hand, unease about the potential for judicial politisation and overreach on environmental issues are warranted and the internal struggle between the branches of the State is set to continue. Ultimately though, this is reflective of a healthy democracy in which separation of the branches of government enables each branch to check and balance out the powers of the others.

Furthermore, from a domestic legal perspective, the decision serves to enshrine the legal concept of environmental harm (‘préjudice écologique’) – a notion which stipulates that any harm caused to the environment warrants that reparations be made to it, just like any harm done to a moral or physical person. Civil society organisations whose mission it is to protect the environment can therefore seek reparations in its name. While seemingly at odds with human rights by moving away from the individual rights holder, in fact, the concept of environmental harm has an interesting history closely associated to human rights. It stems from the principle that ecosystems have many varied benefits for humans (i.e. ecosystem services) and should therefore be protected in their own right in order to respect, protect and fulfill the fundamental rights of individuals. Instead of a claim based on an individual’s right (e.g. right to a healthy environment), a claim founded on the principle of environmental harm is essentially a claim that any damage to the environment inherently and systematically has a negative impact on the enjoyment of our rights.

The implications for environmental policy are vast and the decision could usher in a new era of environmental litigation. While the administrative tribunal denied plaintiffs’ request for financial compensation for the ecological damage (in the form of a symbolic euro) arguing that reparations for environmental harm must, as a priority, be made in kind (i.e. through non-pecuniary measures such as laws and policies to return the damaged environment to the status quo ante), they agreed to consider ordering the State to take certain measures (to be decided in a subsequent hearing) as compensation for its share of responsibility in the environmental harm. In other words, the Court could shape the Government’s environmental policy, which would be a truly seismic judicial shift.

Finally, the Court acknowledged the merits of plaintiffs’ request for compensation for moral damages (i.e. harm that is not material). While compensation was only of one symbolic euro, this opens up the door for victims of climate change to seek compensation in the form of financial reparations from the State for violations of their right to a healthy environment. In effect, this puts significantly more pressure on the State to ensure it fully complies with the obligation to respect, protect and fulfill citizens’ right to a healthy environment through adequate climate change mitigation policies.

In light of these demonstrable benefits of environmental litigation based on the right to a healthy environment for domestic – and inherently international – environmental and climate policy, there can be no doubt that universal recognition of the right to a healthy environment is one of the most important steps the international community could take to safeguard our natural habitat. By recognising environmental human rights defenders’ roles in keeping States feet to the proverbial fire, international recognition would send the clear message that climate change mitigation is an absolute global priority, which we must all work together to achieve.

 

[1] See decision CEDH, 27 janv. 2009, n° 67021/01.


Featured image: ‘L’affaire du siècle’, Greenpeace France, available from: https://laffairedusiecle.net/20-mai-tribunal-memoire-complementaire/

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