The First French Climate Litigation Ruling - Commune de Grande Synthe

  

By Dr Romain Mauger, Groningen Centre of Energy Law and Sustainability (GCELS)

On 19 November 2020, the Conseil d’Etat (the French supreme administrative court) issued a historic ruling in the Commune de Grande Synthe case, potentially the first step towards a landmark climate litigation outcome in France. This ruling was released in the context of a surge in climate litigation cases in France and all over world. For France, the “Affaire du Siècle” case was filed in the Administrative Court of Paris in May 2019 by four NGOs against the government for its failure to act on climate change. And, in January 2020, a group of NGOs and municipalities filed a lawsuit against the oil major Total to force it to rework its “plan of vigilance” and better integrate climate risks as well as to adopt measures to stay in line with the Paris Climate Agreement target of 1,5°C in temperature increase by end of the century. While these cases are still pending, the Conseil d’Etat’s ruling is likely to influence their outcome by setting a precedent.

The Ruling

In November 2018, the municipality of Grande Synthe, a coastal city in northern France, and its mayor requested from the President of the Republic and the government to take any necessary measures to reduce GHG emissions and meet the Paris Agreement’s commitments. Two months later, in January 2019, the claimants sued the state before the Conseil d’Etat for rejecting their demands. Later on, the plaintiffs were joined by other French cities (Paris and Grenoble) and by the four NGOs of the “Affaire du Siècle”.

The supreme administrative court declared the three municipalities’ petition admissible, given their proven inescapable exposure to the effects of climate change in the future (a very strong risk already for the 2030 decade), especially to floods and droughts. It also deemed the NGOs’ petition admissible given that the fight against human impacts on the environment is included in their statues.

To build its reasoning, the Conseil d’Etat referred to the UNFCCC and the Paris Agreement and listed a number of legal texts that were adopted both at EU and national level to implement their international climate commitments. For example, for the EU it referred to the Council decision 406/2009/CE of 2009 on efforts sharing between member states in terms of GHG reduction by 2020 and to the 2018/842 effort sharing regulation for 2030. For France, it mainly mentioned the Energy and the Environment Codes, especially as modified by the 2019 Energy and Climate Act.

In its argumentation, the court highlighted that France had largely exceeded its carbon budget for the period 2015-2018 and that by an April 2020 Decree it had raised the 2nd carbon budget (2019-2023) and lowered the 3rd carbon budget (2024-2028), effectively shifting the bulk of the emission reduction efforts to after 2023. The court argued that the pace of the post-2023 emissions reduction trajectory had never been reached before. As a result, the Conseil d’Etat requested the government to justify how the reduction path to 2030 can be respected without stricter measures. The government has three months to provide these elements.

Highlights

Below, we shine a spotlight on a few elements of this preliminary ruling by the Conseil d’Etat as they reveal the court’s intention and already represent an achievement for climate litigation in France.

First, although this ruling only requests the government to provide more information about its action on GHG emissions reduction and will be completed by another ruling in the future, it affirms the judges’ control over state action in the field of climate change. The government has to prove it is doing enough to comply with its commitments. However, the court does not replace the law-maker, as it is sometimes argued. Indeed, in the ruling, the Conseil d’Etat rejected the plaintiffs’ demand to force the government to submit climate bills to the Parliament. Yet, the court may still decide in the final ruling to order the government to adopt regulatory measures coherent with its own commitments in international, EU and national law.

Second, the role of municipalities and associations in climate litigation cases in France appears to be key. However, in this very case, it seems that citizens took a back seat. Indeed, the intervention of the only plaintiff in its quality as citizen, the mayor of Grande Synthe, was not judged admissible. The court estimated that currently living in an area likely to be flooded in 2040 is not sufficient to prove an inescapable future damage. Needless to say, individuals can move away, a municipality cannot. Nevertheless, it may be possible to find in this case an indirect yet significant role of citizens. In the ruling, the court referred to 2 reports of the High Council on Climate (HCC) that criticised the government’s climate action. This institution was set up at the end of 2018 to appease the Gilets Jaunes (Yellow Vests) movement in France, a protest which started against the rise of a carbon tax on gasoline. Ironically, an institution directly resulting from public pressure and tasked to facilitate the acceptability of sometimes unpopular climate measures (such as taxes) by providing a scientific opinion, comes back to haunt the government. It’s also during the agitated month of December 2018 that the Affaire du Siècle launched a petition which gathered 2 million signatures in one month to demand bolder climate action from the government, further increasing public pressure on climate issues and providing significant political weight to the climate cases shortly filed after.

Third, the Conseil d’Etat built its ruling on science. It refers to the IPCC reports, to the HCC reports, and to the data from the National observatory on the effects of climate change. These documents were used to prove the climate threat to the municipalities, to demonstrate the lack of action by the government, and to emphasise the aggravating risks of climate change and therefore the need for urgent action.

Fourth, the case is a landmark in and of itself by invoking the Paris Agreement in front of the courts. Indeed, while the Conseil d’Etat did not recognise a direct effect of the UNFCCC nor of the Paris Agreement as they need to be implemented by legal acts taken by each signatory, it stated that the objectives set by France in this respect must be read in the light of these agreements.

Fifth, the elements discussed above point to some similarities with the famous Urgenda case. Indeed, in both cases courts considered international climate agreements and climate science to support their decisions and to look for legal responsibility of the state. However, it’s a different type of climate litigation. The main difference being that the Commune de Grande Synthe case is not based on rights, such as the right to life and the right to respect for private and family life, while this was instrumental to the Urgenda case. That being said, by setting an already significant precedent, this decision will certainly strongly influence other climate cases, starting with the one mentioned at the start of this note, the Affaire du Siècle. This still pending case (Affaire du Siècle) is closer to the Urgenda case, as it integrates into the claim articles 2 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms linked to the above mentioned rights.

Finally, we must wait for the final ruling of the Conseil d’Etat to be published after the government will have provided the court with the required elements. Then, we will see how deep the Conseil d’Etat  is analysing the adequacy between France’s emissions reduction trajectory and the mechanisms it has adopted to follow it. If the elements provided by the government do not convince the supreme administrative court  it could recognise the state’s climate inaction and order any measures to be taken to comply with the international climate commitments.

Comments

Popular posts from this blog

New EU Gas Package Proposal - A Legal Analysis

Dutch Elections: Energy and Climate Considerations

Independence of German National Regulatory Authority (NRA) called into Question - Case Comment C-718/18 Commission v Germany