Cases of a new kind are piling up on the desks of judges around the world. For several years, NGOs and citizens have been going to court to demand accountability from their leaders, whom they accuse of not being sufficiently ambitious or mobilized in their fight against global warming. In France alone, two actions are underway: in July 2021, the Council of State gave until March 31 to the French State to take the additional measures necessary to achieve the target of a 40% reduction in greenhouse gas emissions by 2030, in accordance with its commitments made in the Paris agreement. As part of “The Affair of the Century”, the administrative court of Paris gave him, in October 2021, until December 31, 2022 to repair the ecological damage he caused by the non-respect of its commitments.
Actions by young Europeans before the European Court of Human Rights, complaints by British activists against the weakness of the United Kingdom’s “carbon neutrality” plan, decisions in Colombia, the United States, the Netherlands… pressure from David force Goliath to revise his copy?
New tools for new battles
If legal tools have for decades been put at the service of the planet and its protection – against projects for dams, roads, intensive farming, etc. –, attacking States on what applicants see as shortcomings in their public policies is relatively new. “This can be explained very well by the fact that the texts relating to the climate are quite recent”, observes Marine Denis, jurist, specialist in public international law and spokesperson for Notre Affaire à tous, one of the organizations at the initiative of “L’Affaire du siècle”.
Thus, to assert the French State’s climate responsibility, this action is based on the Paris agreement, signed in 2015, but also on the energy transition law, adopted the same year, on several European directives, or even on the National Low Carbon Strategy. “So different texts, from different sources of law – international, European, national law – but what connects the use of all these foundations is the fact of considering that the State, because it has adopted them , has obligations to reduce greenhouse gas emissions”, continues Marina Dennis.
The mission is therefore to “to look for the shortcomings, the failures of the State. Where it has either not done enough to reduce emissions, or carried out public policies which are considered to have worsened emissions.” In the Netherlands, the strategy has paid off. In 2015, a court in The Hague, seized by the Urgenda Foundation, estimated that the ambitions in terms of reducing the country’s emissions (then at 14%-17% compared to 1990, against a range of 25% to 40 % in the IPCC recommendations) were insufficient. Forced to raise them, the state lost on appeal, before being called to order again by the country’s Supreme Court in 2019.
Mixed but promising results
It is still necessary that the condemned States and administrations work to make up for their shortcomings. Marine Denis thus recalls that France is regularly condemned for the conditions of detention in its prisons, without this being followed by significant action. On the climate, after the victory of Urgenda in the Netherlands, ambitions have been raised, polluting projects put on hold and a speed limit introduced on the motorways… So many initiatives that are only a matter of political will. Because “the law cannot do everything, shade Marine Denis. Being convicted or sanctioned by an administrative tribunal does not stop a public policy.” The lawyer recalls that under the separation of powers, the judge can only point out a breach, but certainly not influence the trajectory of a policy.
“The law is one of the interesting tools in the militant movement for climate justice, alongside actions of civil disobedience, mobilizations in the streets, actions on the sidelines of climate negotiations, etc.”, adds Marine Denis, who sees in these practices “an issue of democratization of law”.
“For citizens, it is a means of recognizing that the right to a healthy environment or the right to live in a world with a stable climate constitute rights close to the fundamental rights recognized in the first generations of texts on human rights. man – right to life, right to water, right to access to food.”
Marine Denis, lawyerat franceinfo
“The effectiveness of a legal action such as ‘The Case of the Century’ is not necessarily what one thinks, adds the lawyer Arnaud Gossement, specialized in environmental law. Has it made it possible to talk about the climate emergency? Yes. Did it collect 2 million signatures on a petition? Yes. In terms of mobilization and awareness, the effectiveness is obvious.” On the other hand, deplores the lawyer, “Asking a judge to find that the law has not been applied does not settle the question of the lack of means available to our public services to apply the texts. If you do not have police officers, inspectors, officials to investigate cases, control, monitor, sanction, then all of this is useless.”
Actions that make children
The local scale is precisely what interests lawyer Hélène Leleu. It accompanies two actions carried out by citizens, including a group of around forty parents of pupils worried about the future of their children: one in the Drôme and the second in the Lot. “We are writing to the prefecture to ask for action on a certain number of local issues linked to global warming. After two months, if we do not get an answer, it means refusal and we can then lodge an appeal before the administrative court against the refusal of the regional prefect to act in these areas”, she explains. The territorial approach, also new, opens up a myriad of local variations. “In the Drôme, for example, the question of water resources is crucial, like that of agriculture, air quality, etc., continues Hélène Leleu. We try to highlight the difficulties specific to the territory, on the ground.”
Conversely, other initiatives have emerged before international courts: in 2021, six young Portuguese people aged 9 to 22 filed a complaint against 33 countries (including France), before the European Court of Human Rights. ‘man. Based on scientific work indicating that the current promises of the States will not make it possible to meet the objective of a rise of 1.5°C by 2100, they are also asking for an increase in these ambitions.
Finally, this strategy is also used to demand accountability, not from States, but from private companies which are also displaying policies to reduce greenhouse gas emissions. In another historic judgment, handed down in 2021 in the Netherlands, Friends of the Earth obtained that the Shell oil company be forced by the courts to reduce its emissions. For this, the District Court of The Hague relied on the duty of care, “an old principle of civil law that we also know in French law and that we could call the duty to take care, reports Arnaud Gossement. The judge listed the company’s increasingly ‘green’ statements, commitments and speeches and opposed them to ask it to keep its own commitments.” For the lawyer, “this case law which is developing is also very interesting, even more so than actions against States”.