Revue Européenne du Droit
Capitalism and Future Generations
Issue #4
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Issue

Issue #4

Authors

Judith Rochfeld

Revue européenne du droit, Summer 2022, n°4

Climate litigation has become the forum for resounding controversies over our economic growth models. Because these debates don’t happen elsewhere – as attested again by the virtual absence of questions regarding our economic model during the April 2022 French President election debates – they are held before courts, which, over the past years, have indeed taken on the responsibility of hosting them.

In the Netherlands, Austria, Belgium, Germany, the United Kingdom, Ireland, Norway, the United States, Canada, Australia, New Zealand, the Philippines, Pakistan, Colombia, Nigeria, and so on, lawsuits are being filed by associations, citizens, local authorities or companies challenging government policies on climate change or the consequences of the activities of certain companies, in particular the ‘carbon majors’, the hundred or so large cement or oil companies 1 . Doomed to failure at their inception (since 2017, following the December 2015 Paris Agreement), these lawsuits started bearing fruits since the Urgenda decision of the Dutch Supreme Court dated 20 December 2019 that issued an injunction to the Dutch government to comply with the greenhouse gas (GHG) emissions reduction targets it committed to for 2020. 

With respect to France, one could refer to the decisions of Council of State (Conseil d’Etat) in the case initiated by the commune of Grande-Synthe (joined by the cities of Paris and Grenoble as well as environmental associations), as well as to those of the Paris Administrative Court. On November 19, 2020 and July 1, 2021 2 , to the general surprise, the Council of State issued an injunction to the French government to comply with the emissions reduction targets spelled out in binding legislation (notably Article L. 100-4 of the French Energy Code), in relation to the objectives set by the nation within the 2015 Paris Agreement and the equally binding European requirements (the ‘2020 Climate & Energy Package’; the requirements have since been raised to -55% by 2030) 3 . We are now expecting the third phase of this litigation and the ‘sanction’ that would be imposed on the governmental in view of the insufficiency of its efforts. On February 3 and October 14, 2021 4 , at the request of four associations joined in the ‘Affaire du Siècle’ and supported by nearly 2.3 million citizens, the Paris Administrative Court held the French State liable for omission to act, due to the delay in pursuing an effective climate policy, a failure that the Court deems to be the cause of an ‘ecological damage’ consisting in the degradation of the climate system.

One can readily see, therefore, that there is now a global context of challenges to the climate policies of States (at least where such challenges are permitted and possible), as well as to the activities of companies involved in the extraction, production and consumption of fossil fuels. In an informal and polycentric manner, through a ‘reterritorialization of the global’ 5 , a global discussion is emerging over the energy model to be favored, if not, more broadly, over the sustainability of the ‘extractive’ model (ie relating to the extraction of ‘natural resources’) to support economic growth: absent an international court and an engagement in these debates in the major forums of international trade, these scattered legal challenges, through which unprecedented arguments are being disseminated extremely rapidly and on a global scale, serve as a forum for the discussion over the future of our growth model. 

It is important to realize that every decision in the Netherlands, the United Kingdom, Norway, New Zealand, Australia, Colombia, or France not only gives rise to commentaries and detailed scrutiny in many parts of the world, but also provides governments and companies with hints of what ‘climate’ policies and activities can still be undertaken. Granted, one must not exaggerate the real impact of these litigations. If they are no longer purely symbolic, as they were deemed at their beginning, they will, obviously, not be able to change on their own the development trajectories. Moreover, the timeframe of judicial actions is not that of the ‘climate emergency’ and all the decisions will not be handed down in the three years that the IPCC has set to radically reorient climate policies and activities in order to prevent the climate disruption from getting out of control 6 … Still, these litigations provide forums for raising citizens’ awareness and putting pressure on governments and companies, if only considering that significant sanctions start being issued (many of the former immediately change their policies or reorient them, irrespective of the success of the litigation; the latter cannot ignore the impact of these debates on individual and collective consumer choices. Their effects are therefore far from being negligible in practice.

At a deeper level, from a legal standpoint, they constitute an extraordinary laboratory for new arguments, a weaving of notions used in one jurisdiction and acculturated elsewhere, and that, in an extremely reduced timeframe due to the worldwide circulation of arguments mentioned above. These litigations start leading to paradigm shifts and questionings over part of the growth model on which we have long relied. We would like to substantiate this claim by taking the example of the French litigation, on the one hand, regarding the assessment of lawful business activities, on the other hand. However, in addressing these issues, we will also take account of the influence that arguments debated in other jurisdictions might have. 

We will show that, based on the legal tools available under French law, it would no longer be exactly possible to govern, produce and consume, even legally, while ignoring the material finiteness of the world and the disruptions that it is currently undergoing (1), all the more so as new ‘creditors’ of the perennity of the world take center stage, projecting the legal arguments at an intergenerational scale, ie taking account of future generations (2). However, the use of the conditional tense is still warranted when addressing these developments, for while these legal tools do indeed exist, it is not granted that they would be applied strictly to all relevant companies and would engender changes in the short term.

1. The reintegration of the world: the duty of vigilance

One of the major contributions of the litigation against companies is the reintegration of considerations about the physical world into our economic growth model. But why talk about reintegration rather than integration? The reason lies in the fact that numerous economists had in the past pointed to the finite nature of ‘natural resources’ and concluded that it would be impossible to craft a sustainable growth model without taking it into account 7 . The Meadows Report of 1972, although debated in some respects (notably for having linked ‘development’ and ‘sustainable’), has early on made this hiatus official 8 . The level of the reaction engendered by this warning was proportional to the changes it implied:  it consisted in one of the strongest reaffirmations of the existing economic models… and a relegation of those who were questioning the ‘dematerialization’ of the economy (an economy that disregarded the physical world).

It is precisely the return of this question, extended to encompass the questions of pollution and climate change, that one sees in the issues raised before courts that are requested to assess the climate policies of governments and (even more so) the activities of companies involved in the extraction production and marketing of fossil fuel and its derivatives: while the discussion before courts was initially concerned with the enforceability of the commitments undertaken by States under the Paris Agreement or other international treaties, as well as with the type of constraints that these texts created for public authorities 9 , it has now moved to assessing the feasibility of continuing perfectly legal operations in a finite and polluted world, the limits of which are pointed out by converging international expertise 10 .

Moreover, while the conditions for challenging legal activities (albeit sometimes subject to authorizations) before courts seemed to be settled, they are now undergoing a significant evolution. Under normal circumstances, such challenges are not available: the legal system used to defer to classical ways of distribution of risks and ‘negative externalities’, ie the ‘social costs’ of these activities, and to rely on traditional tax tools (taxes on emissions aiming to make apparent these costs in the price signal and incentivize emission reductions), or the allocation of greenhouse gas emission allowances (tradable rights understood as circulating assets and supposed to constrain some of the uses of the atmosphere); in a liberal framework, an authorized activity is supposed to pay these social costs through such traditional means. Therefore, many lawsuits brought against companies aiming to force them to reduce or halt their emissions, enact preventive measures, or repair damages presumably resulting from their activities have not succeeded in the United States (including because the causal link between the activities of particular companies and their presumed consequences is not always direct…) 11 .  But this steady approach has recently started showing cracks, on one hand because debates now involve certain anticipation duties falling on particular companies; on the other hand, because the bar set by these anticipation duties is on the rise, and could soon be sufficient to substantiate claims of faults of anticipation. We are therefore witnessing a profound reconceptualization of the distribution of risks and ‘negative externalities’, although the relevant extractive and productive activities are still authorized. 

A. Anticipatory duties: vigilance and planification

First, a duty of vigilance is currently emerging in France and in Europe. At a first glance, this may involve a mapping of the risks to which the company’s operations give rise, as well as of the measures required to control them. Some see this as a duty of ‘planning’ rather than acting 12 .

As a case in point, it should be noted that France initiated this evolution with its Law no. 2017-399 of March 27, 2017 ‘on the duty of vigilance of parent companies and instructing companies’ (adopted based on the model of the German law on parent company liability). This text required large companies headquartered in France to draw up a ‘vigilance plan’ setting out, on one hand, the ‘reasonable vigilance measures suitable for identifying risks (…) to human rights and fundamental freedoms, the health and safety of people and the environment, resulting from the activities’ of their entire value chain. This included the risks arising from their own operations, from the operations of their subsidiaries, as well as those of their subcontractors and suppliers with which an instructing company has established business relationships 13 . To this end, parent companies and instructing companies are required to draw up a map of the risks arising from their activities, aimed at identifying, analyzing and prioritizing them. On the other hand, these companies must set out the ‘reasonable vigilance measures suitable for (…) preventing serious violations’ of human rights and fundamental freedoms, and the jeopardizing of personal health and safety and the environment. The plan must include ‘appropriate actions to mitigate risks or prevent serious harm’. It must also set out the procedures used by the company for the regular assessment of the situation of its subsidiaries, subcontractors or suppliers, as well as the procedures aimed to alert to the existence or realization of risks and to monitor ‘the implemented measures and to evaluation their effectiveness’ 14 . Failure to undertake all these measures could lead to injunctions, if the company does not set up such plans or does poorly, or even to tort liability if the company’s failure gives rise to damage for other stakeholders.

But France doesn’t hold a monopoly over this idea; in other legal systems, companies are sometimes subject to duties of care of various origins: in the Netherlands, Canada, New Zeeland, among others, such duties of care are regularly used against companies in climate litigation. On February 23, 2022 European commission has also presented a ‘Proposal for a Directive on corporate sustainability due diligence and annex’, in line with the French law: the duty of care would apply not only to European companies with more than 500 employees and a turnover in excess of 150 million euros (these thresholds being subsequently lowered to 250 employees and 40 million euros respectively), but also to foreign companies with a turnover in excess of 150 million euros in the EU 15 .

Granted, the scope of application of this duty is very limited. The duty only applies to a limited number of companies, which are not the only ones to cause ‘negative environmental externalities’, ie joint-stock companies (sociétés anonymes) 16 that have at least 5,000 employees in France (including through their subsidiaries), or 10,000 employees abroad 17 . There is no official count of such companies, but it is estimated that there are between 200 and 300 of them. However, despite this very reduced scope of application, the heated discussions during the parliamentary debates showed that this duty didn’t only amount to a recognition of the important role played by some multinational undertakings in globalization, and a decision to impose on them an extraterritorial responsibility with respect to their entire value chain but was also the sign of a possible question of, and interference with, the way in which they create value. 

On the one hand, legislators were acknowledging the loss of power of States compared with these powerful groups of ‘multilocalized’ companies and tried, through the very contemporary tool of compliance, to incentivize the latter to endorse regulation through a ‘logic of accountability’ 18 . On the other hand, legislators were setting red lines that these companies couldn’t cross, notably regarding ‘serious harm’ to the ‘environment’. It should be noted that the behavior of companies that pay little attention to the activities of those to whom they delegate profit-making operations was brought to the fore (and subject to increased media scrutiny) following the disaster of the 2013 collapse of Rana Plaza in Bangladesh: 1,130 people died, who worked on behalf of large international groups but without being bound to them by any contract, not even subcontracting (even though the building has been inspected, and some cracks were known).

But it is precisely for not having established this kind of plans that companies were targeted at first (and not directly to change their operations), hence the idea of a lack of ‘planning’.  Indeed, the enforcement of this text was not long in coming: the first legal cases were initiated as soon as it became possible, criticizing the insufficiency of the plans, notably in their environmental aspect. This is precisely the point of the first litigations targeting the largest French ‘carbon major’, Total 19 , which is also one of the six ‘supermajors’: the mayors of thirteen cities and local authorities, as well as four associations (Notre affaire à tous, Eco Maires, Sherpa and Libérons l’Océan!) initially requested clarifications  from its president in a later dated October 22, 2018, in which they stigmatized the absence of any reference to climate risks and to actions able to reduce them in the company’s first plan 20 ;  since no legal action could be initiated prior to 2019, some of these parties waited until the second plan was published in March 2019 and, once again dissatisfied, notified Total to request that it fulfill its due vigilance obligations on June 19, 2019; the notice having been left without a satisfactory response (from their point of view), they summoned the company before the civil court of Nanterre after the three-month period set in the law, ie on January 28, 2020 21 . At the time of writing, only the question of the jurisdiction of the court has been discussed (the choice being between the civil court and the commercial tribunal) 22 , a question which was settled by the legislator in favor of the civil court 23

It is apparent therefore that, for the time being, it is the lack or the imprecision of the vigilance plan that prompts climate litigation in France. This has an impact on business models but doesn’t change them immediately. But an additional step has just been taken in another jurisdiction, towards the emergence of a real liability for anticipation failure. 

B. The anticipation failure: vigilance and duty of care

Pursuant to a resounding decision rendered in May 26, 2021, the Hague Tribunal has the reshuffled the deck 24 . Obviously, this being a first instance decision, the new direction is not yet final. Nevertheless, it should be remembered that one of the most emblematic rulings, which marked a turning point in the kind of obligations can be imposed on Stats regarding their climate policy, was that of December 20, 2019 issued by the Supreme Court of the Netherlands, in the Urgenda case initiated in n2015 by a foundation joined by 886 citizens… However, the case began before the same Hague Tribunal. Therefore, this new decision is at least of great interest, especially since the parallels with the 2019 decision are quite palpable: similarly to the injunctions issued against the Dutch State, the court enjoins the national ‘carbon major’, Royal Dutch Shell (RDS), as parent company, to reduce its greenhouse gas emissions by at least 45% by the end of 2030 (compared to 2019), both direct and indirect emissions, ie even those caused by the use of the oil or gas bought by third parties, the consumers of these goods (as a response, the company has since relocated to the UK… where it is also facing the wrath of the British judicial system).

For this purpose, it was first necessary to identify the relevant duty, as well as a reference norm setting its content and rendering the emission activities objectionable… 25 This is what the court tried to do, based on what it considered to be the international consensus on climate, set either scientifically or legally 26

From a scientific standpoint, the IPCC’s expert reports are relied upon as evidence for the emission reductions that have to be achieved. 

From a legal standpoint, reference is made to soft law texts – such as the United Nations Guiding Principles on Business and Human Rights – as well as international treaties, notably the Paris Agreement (whose ‘justiciability’ has been at the heart of previous litigation). Based on these grounds, the court infers a ‘general obligation to reduce greenhouse gas emissions’ (!), which it considers to be ‘a performance obligation insofar as emissions result from Shell group’s own activities’ and ‘a best-efforts obligation regarding the emissions resulting from the group’s commercial relations with the end users of the oil and gas sold by the group’. 

The reasoning doesn’t leave too much room for the economic interests of the group…: ‘the compelling common interest advanced by the compliance with the emission reduction obligation outweighs the negative impact that Royal Dutch Shell may face as a result of the reduction obligation as well as the commercial interests of the Shell group, which are advanced by an unrestricted preservation of the carbon emitting activities’ 27 . As pointed out by our colleague Laurence Dubin, ‘the quoted paragraph shows a completely different conception of private companies, that of an entity whose profit-making activities must not result in abusive use of common goods, in this case the climate. From the model of the Fordist corporation, the sign of the rise of the industrial capitalism, to that of the limited liability corporation, the sign of neo-liberal capitalism, the corporation traversed the different ages of capitalism; the post-modern model requiring the regulation of the activities of multi-national companies and of their negative externalities is, for its part, underway’ 28 . The reference to a global ‘common good’ (or a common asset, in the absence of any appropriation) with respect to the climate system seems to us accurate, and is related here with a duty of care that is quite effective. All the more so since, in other jurisdictions, the community benefiting from its enjoyment (or interdependence, using less reifying language), ie future generations, has taken shape at the same time.

2. The ‘reintegration’ of the interdependency community: the ‘justiciability’ of future generations’ entitlement to protection 

The interests of future generations received a resounding judicial concretization through the admission of an entitlement to protection in its favor. This solution is in line with the initial idea of there being a community entitled to the protection of the climate system, ie humankind, but gives it a legal force that the latter has never acquired.

A. Climate protection, a common concern of humankind 

Indeed, when question of climate change became important in public international law, starting at the end of the 1980s and the beginning of the 1990s, it is the idea of the climate system being a ‘common concern of humankind’ that became the official banner. The preamble of the United Nations Framework Convention on Climate Change, signed at the Rio Summit and following up on the discussions undertaken in Montreal (1987) and Toronto (1988-1989) 29 , states that ‘change in the Earth’s climate and its adverse effects are a common concern of humankind’. This statement draws the contours of a global ‘beneficiary’ community, taking the form of humankind 30 , and of a ‘common’ resource (while also minimizing, nevertheless, by this very formulation, the principles that would have been applicable if reference was made to a ‘common heritage of humanity’ 31 ). In this way, the text also gave ‘substance’ to the intuitive ‘risk community’ theorized by Ulrich Beck in the early 1980s, which was supposed to be anchored, united and consensual, responding to an awareness of the major risk to be faced together 32 . Also exposed here was the articulation that would preside over the pursuit of a preservation policy: according to quite classical attired, ‘[t]he Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities’ (Article 3, first principle). 

On one hand, therefore, the abstract beneficiary of the enjoyment and preservation of this common ‘resource’, ie this ‘humankind’ that embodies the inter-generational and spatial solidarity; on the other hand, the entities that were entrusted with the preservation of the common resource, ie each of the States, which remain sovereign in the application of preservation policies on their territory. In fact, this articulation persists, as attested by the Paris Agreement, which reiterates that ‘climate change is a common concern of humankind’ (11th) and delegates to the States the task of responding to it. Yet, as is well known, beyond this assumption of the humankind being the ‘beneficiary’ of this common resource, it has never been possible for this entity to take shape, to have dedicated representatives and identified interests, even though proposals have been put forward in this respect, such as that of creating the function of a mediator or ombudsman, a person or group entitled to speak on its behalf and to defend its interests 33 ; it has never gained an organized form and could never act on its own behalf. As pointed out, for instance, by Catherine Le Bris, this reference amounted ‘more to a starting point rather than an end point’, meaning that ‘this concept provides guidance on the way forward – a collective way forward – but does not in itself imply any precise substantive standards’ 34 . It could only be understood as an incentive for States to cooperate in a multilateral approach, for the benefit of the designated global community. 

Consequently, the climate system has obviously not been conceptualized as a ‘commons’ in the sense given to this term in the influential account of Elinor Ostrom and her Bloomington school 35 , ie the articulation of three components: a resource environment or domain from which it is difficult to effectively exclude other users (‘non-excludable’); control rights allocated amongst different parties, notably access, use, management and exclusion rights, composing bundles of rights – a familiar idea in the US theory of property, composed of different ‘sticks’ rather than the absolute control over the asset by a single owner; a collective governance, set up by the identified members of a medium-sized community (a hundred people at most) 36 . Faced with a global ‘commons’ (to which this theory was extended by Ostrom) implying a multi-level governance, ie the articulation of the different levels of governance 37 , it naturally fell to the major historical actors, ie the States, to organize themselves, through the pursuit of their classic policies of regulation and planning. 

It is therefore useless to recall the failure of the ‘universalist’ version of humanity: it was supposed to be non-contentious and to pursue a univocal common interest; but it fizzled in the face of dissent 38 . From one COP to another, the climate system evolved towards a ‘tragedy of the commons’, popularized in 1968 by Garett Hardin, who described the way in which, open and ungoverned, common resources can give rise to over-exploitation and free-rider problems, considering that the long-term negative effects of these actions are not felt, nor incurred by current users 39 . As pointed out by Mireille Delmas Marty, ‘it is not enough to invent new concepts like those developed in the last century: the ‘common heritage of humanity’, which appeared in the 1960s […]; or the ‘global public goods’, or ‘global commons’, borrowed from economists in the 1980s […] to designate goods that are both non-excludable (which can be used by all) and non-rivalrous goods (their use does not compromise the use by others). It is well known that these terminological innovations have not succeeded in changing the balance of power. International law remained the quasi-monopoly of States defending their national interests.’ 40 Or, to put it in Bruno Latour’s terms, this construct has not succeeded in ‘unifying the Anthropos as an actor endowed with any moral or political consistency’; it has not resulted in a unified ‘human species’ that could have endorsed a responsibility, the human being having remained ‘decomposed in several distinct peoples with conflicting interests and conflicting territories’ 41 .

This concept is currently undergoing a reformulation, on a re-territorialized scale and following a new articulation between the individual rights of present generations and the projection of the interdependence of future generations with the ecosystems.

B. The ‘duty to protect’ the climate, an entitlement of future generations

It is hardly surprising to see the fundamental rights of the individuals making up the current generations being relied upon in climate litigation, especially against economic activities. 

First, they are omnipresent in the philosophical approaches to climate ethics: the latter enumerates the ‘basic rights’ that condition the use and enjoyment of all other rights, and which must therefore be recognized for every human being 42 ; these rights would be undermined by the lack of action on climate matters by States or by the activities of certain businesses. Their protection should therefore trump any other type of principles or imperative, notably economic and development ones, and implies correlative duties (although no one denies the difficulty of identifying the subject of these duties, and their precise content 43 ). 

Second, from a legal standpoint, the link between the protection of fundamental rights and the protection of the ecosystem figured as early as 1972 in the Stockholm Declaration and was extensively relied upon in the climate litigation field, be it in its ‘classic’ version – regarding the protection of the rights to life, to food, to water (more rarely the rights to surety and health), or even the right to private life, which would be undermined absent climate action – as well as in more modern versions, regarding rights of the third and fourth generation. 

The right ‘to live in a balanced and healthy environment’ (France), in ‘that is consistent with the human dignity and wellbeing of citizens’ (Ireland), in a ‘natural environment whose productivity and diversity are maintained’ (Norway), are regularly argued for, as are, in an even more specific manner, the ‘right to a stable climate’ 44 or to a portion of the atmosphere. In doing so, it is through the ‘I of us’, through individual rights that the protection of the common interest is most effectively asserted… (notably considering the question of the standing to sue and substantive effectiveness of the arguments) 45

For instance, the emblematic legal actions carried out since 2015 by the association Our Children’s Trust in the United States to push federal or state governments towards more offensive policies in defense of the climate are based on the fundamental rights of the 21 young people represented in the case: their right to the respect of their dignity, to life and to health. Arguments based on the respect for fundamental rights also underpinned the 2015 decision of the Lahore High Court in Pakistan, upholding a farmer’s claim against the State 46 . In the same vein, the guarantee of fundamental rights was the basis of the unsuccessful ‘People’s Climate Case’ initiated by some associations (CAN-Europe and Germanwatch) as well as by 36 applicants and their families before the General Court and the ECJ with, in this case, the great originality of not only relying on the ‘basic’ rights mentioned above, but also on those relating to economic activity: ‘climate inaction’, the argument goes, would threaten certain crops and animal species (bees in particular) and, consequently, the right of property and the freedom of enterprise 47 . It is also based on the protection of the rights of six young Portuguese people – to life, to food, etc. – that convinced the ECHR to hold admissible their action against 33 States for climate inaction…

This reliance on individual rights has just undergone a major development, with the revolutionary decision of the German Federal Constitutional Court of March 24, 2021 48 . In order to hold the National Climate Protection Act of December 12, 2019, unconstitutional and to decide that the legislator should adjust its reduction targets until December 31, 2022, the Court first identified a ‘State’s duty of protection against the risks posed by climate change’ (recital of principal 1 and paras. 143 et seq.) or an ‘objective duty to protect’. Then it considers that, on the one hand and by lack of precaution, all of the fundamental rights and freedoms would be undermined by a climate change making human life on Earth impossible (the plaintiffs relied on precise rights, ie their rights to life, physical integrity, as well as rights of property, together with the ‘natural foundations of life’ referred to in article 20 of the Basic law: paras. 117 and 183 et seq.). 

This is quite an offensive take on the ‘anticipatory effect’ of fundamental rights, ie not only their protection before the ultimate threat is realized, but also protecting them in their entirety. The Court then points out the poor distribution of risks: to postpone the burden of the necessary actions to 2030, as the law did because of the absence of stringent obligations prior to 2031 (the reduction targets was drastic from that date), was tantamount to placing the burden on younger (present) generations; this, for the Court, was unbalanced between generations and couldn’t guarantee ‘freedom over time and across generations’ (para. 142). Above all, by making the accomplishment of the necessary actions uncertain, this failure of the law obliterates the future of future generations, which are also ‘entitled to protection’: based on article 20a of the Basic law, the Court therefore imposed a duty of protection of the environment (or an objective duty of care) ‘including a responsibility for future generations’; there is a ‘necessity to treat the natural foundations of life with such care and to leave them in such condition that future generations who wish to carry on preserving these foundations are not forced to engage in radical abstinence’. This entitlement, and these generations, have suddenly become, after many unsuccessful attempts 49 , ‘justiciable’…

Therefore, if one crosses the phenomenon of the emergence of a reinforced duty of care, incumbent on companies, with that of the ‘legal concretization’ of future generations as a community benefiting from climate protection and embodying a long-term projection, one realizes the explosive potential of such a bundle: any activity that undermines the conditions of life on Earth in the long term could be caught up in the vortex. But we are getting carried away, for all jurisdictions are not as offensive as the German Federal Constitutional Court 50 ;  even the latter has only found the State to be subject to such a duty to protect. Nevertheless, first, this court sets the European standard for fundamental rights and may well set the standard for others. Second, some arguments that had hit the nail on the head regarding States are sometimes successfully shifted to companies, the ‘Shell’ decision of the Hague tribunal being a case in point… only the future will tell whether this judicial cross-fertilization will take place and will be able to shake the ‘extractive capitalism’ to its core, by pushing for a reintegration of ‘matter’ in our growth models. We wait to see… but time is running out.

Notes

  1. Note however that they are not the only ones, since companies in the agri-food sector, involved in crops that lead to deforestations in the Amazon, for example, are also on trial.
  2. CE, 19 nov. 2020, n° 427301, Commune de Grande-Synthe, Recueil Lebon ; Énergie – Env. – Infrastr. 2020, étude 17, M. Torre-Schaub ; Énergie – Env. – Infrastr. 2021, dossier 12, C. Huglo ; AJDA 2021. 2115, note H. Delzangles ; RFDA 2021. 777, concl. S. Hoynck.— CE, 1er juill. 2021, n° 427301, Énergie – Env. – Infrastr. 2021, comm. 77, S. Hoynck ; JCP A 2021, 2264, note F.-X. Fort and C. Ribot ; JCP G 2021, 795, obs. B. Parance and J. Rochfeld. 
  3. Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’). Adde Regulation 2021/783 of the European Parliament and of the Council of 29 April 2021 establishing a Programme for the Environment and Climate Action (LIFE), and repealing Regulation (EU) No 1293/2013.
  4. TA Paris, 3 févr. 2021, Association OXFAM France et autres, n° 1904967, n° 1904968, n° 1904972, and n° 1904976/4-1, D. 2021. 240, obs. J.-M. Pastor ; AJDA 2021. 239 ; JA 2021, n° 634, p. 12, obs. X. Delpech ; AJDA 2021. 2228, obs. J. Bétaille, commentary by H. Delzangles ; AJDA 2021. 2115, C. Cournil and M. Fleury, ‘De “l’Affaire du siècle“ au “casse du siècle“?’, Rev. dr. homme 7 févr. 2021, n° 35.— TA, 14 oct. 2021, n° 1904967, 1904968, 1904972, 1904976/4-1, Assoc. Oxfam France et a., Énergie – Environnement – Infrastructures n° 11, Novembre 2021, al. 67, L. Erstein. 
  5. The expression is that of B. Latour, Face à Gaïa. Huit conférences sur le nouveau régime climatique, Paris, La Découverte, 2015.
  6. IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability, accessible at: https://www.ipcc.ch/report/sixth-assessment-report-working-group-ii/.
  7. N. Georgescu-Roegen, The Entropy Law and the Economic Process, Cambridge, Massachusetts: Harvard University Press, 1971 ; some extend this framework by addressing largely polutions and climate change, see eg (in French) E. Chiapello, A. Missemer and A. Pottier, Faire l’économie de l’environnement, Paris: Presses de l’Ecole des Mines, 2020.
  8. D. Meadows, D. Meadows, J. Randers and W. B. Behrens, The limits to Growth, Universe books, 1972, 205p. 
  9. See eg, M. Torre-Schaub, ‘Justice et justiciabilité climatique : état des
  10. See eg, the concept of ‘planetary boundaries’, discussed by J. Rocktrëm et al., ‘A safe operating space for humanity’, Nature 461, p. 472-47, sept. 2009, which refers to a certain level of climate change, of ocean acidification, ozone depletion, biodiversity erosion, disruption of biochemical cycles of nitrogen and phosphorus, chemical pollution, air pollution, water use and land use change.
  11. On these obstacles, see D. A. Grossman, ‘Warming up to a not so radical idea, Tort-Based Climate Change Litigation’, Columbia Journal of Environmental Law, vol. 28, I, 2003, p. 3. For a recent example in the US, see K. Silverman-Roati, ‘In a first for climate nuisance claims, a Hawaii’s State Court allowed Honolulu to proceed with its case against fossil fuel companies’, Climate Change Blog, February 23, 2022, https://blogs.law.columbia.edu/climatechange/ ; and in French, see L. Canali, ‘Les contentieux climatiques contre les entreprises : bilan et perspectives’, in C. Cournil and L. Varison (dir.), Les procès climatiques. Entre la national et l’international, pref. M. Delmas-Marty, Pedone, 2018, p. 67. 
  12. The expression is borrowed from A. Danis-Fatôme during an intervention at the French Cour de cassation, January 31, 2022, in Les grandes notions de la responsabilité civile face aux mutations environnementales. Le fait générateur, (forthcoming 2023).
  13. Precisely, for the activities of ‘companies that it controls in the sense of point II of Article L. 233-16, directly or indirectly, as well as activities of subcontractors or suppliers with which it has an established business relation, where these activities relate to this relationship’ (free translation from the original French), see Article L. 225-102-4, I., al. 3, of the Commercial Code, and, regarding the difficulties with the scope of this Article, D. Gallois-Cochet, op. cit.; S. Cionnaith, G. Jazottes and S. Sabathier, ‘Délimiter le périmètre de la vigilance : entre concepts de soft law et hard law’, RLDA 2017, n° 3, p. 25.
  14. Article L. 225-102-4, I, 1°, 3°, then 2°, 4°, 5°, of the Commercial Code. For more details, see S. Schiller (dir.), op. cit.; B. Parance, ‘La consécration législative du devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre’, Gaz. Pal. 18 avr. 2017, p. 16; S. Schiller, ‘Exégèse de la loi relative au devoir de vigilance des sociétés mères et entreprises donneuses d’ordre’, JCP E 2017, 1193; A. Reygrobellet, ‘Devoir de vigilance ou risque d’insomnies ?’,  RLDA 2017/128, no 6275 ; C. Malecki, ‘Devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre : la France peut-elle faire cavalier seul ?’, Bull. Joly Sociétés 2017. 298; J. Heinich, ‘Devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre : une loi finalement adoptée, mais amputée’, Dr. sociétés 2017, no 78. On liability and causality, see A. Danis-Fatome and G. Viney, ‘La responsabilité civile dans la loi relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre’, D. 2017. 1610. On the parliamentary debates and different versions of the text, see C. Hannoun and S. Schiller, ‘Quel devoir de vigilance des sociétés-mères et des sociétés donneuses d’ordre ?’, RDT 2014. 441; N. Cusacq, ‘Le devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre : Acte II, scène 1’, D. 2015. 1049; A. Pietrancosta and E. Boursican, ‘Vigilance, un devoir à surveiller’, JCP G 2015, 553; A. Danis-Fâtome, ‘La proposition de loi relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre : une avancée modeste pour les victimes !’, LPA 17 déc. 2015, p. 3.
  15. Comm. EU, Feb. 23, 2022, doc. COM(2022) 71 final. 
  16. The tendency is indeed to limit the scope of regulation to joint-stock companies, the relevant texts being contained in a chapter of the Commercial Code dedicated to such corporations. See, D. Gallois-Cochet, ‘Le périmètre du devoir de vigilance’, in S. Schiller (dir.) Le devoir de vigilance, Paris, LexisNexis-Dauphine, 2019, p. 45; contra see E. Daoud and S. Sfoggia, ‘Les entreprises face aux premiers contentieux de la loi sur le devoir de vigilance’, RJSP n° 16, janv. 2019, 14, I, A. 
  17. More precisely any company ‘that at the end of two consecutive financial years, employs at least five thousand employees itself or through its direct or indirect subsidiaries whose registered office is in France, or at least ten thousand employees in its own company and in its direct or indirect subsidiaries whose registered office is in France or abroad’, see Article L. 225-102-4, I, al. 1, Commercial Code, usually interpreted as meaning a threshold of 10,000 employees applying only if subsidiaries of the French company are registered in other jurisdictions, see eg, B. Parance, art. cit., p. 16-17. For more details, see E. Daoud and S. Sfoggia, art. cit. For a criticism of this threshold and a proposal for its lowering, see French Assemblée Nationale, Rapport d’information sur l’évaluation de la loi du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre, Feb 24, 2022, available at: https://www.assemblee-nationale.fr/dyn/15/rapports/cion_lois/l15b5124_rapport-information.
  18. X. Boucobza and Y.-M. Serinet, ‘Loi “Sapin 2“ et devoir de vigilance : l’entreprise face aux nouveaux défis de la compliance’, D. 2017. 1619, n° 3, n° 6 et n° 22 et seq
  19. In connection with the climate, legal actions are also aimed at about twenty French companies in the food sector and large-scale distribution; these were initiated starting in March 2018, by three associations (Sherpa, Mighty Eath and France Nature Environnement), for not having eliminated from their supplier circuits Latin American soy farmers practicing large-scale deforestation.
  20. M. Hautereau-Boutonnet, ‘Le risque de procès climatique contre Total : la mise à l’épreuve contractuelle du plan de vigilance’, RDC 2019, n° 1164, p. 95. 
  21. Total has also been summoned before the Nanterre civil court for the insufficiency of its presentation of the cartography of risks and actions regarding its oil operations and the construction of a heated oil pipeline in Uganda; but the court held that it did not have jurisdiction on January 30, 2020, considering that ruling on the plan was tantamount to ruling on ‘management acts’, which fell under the jurisdiction of the commercial court. 
  22. Cass. com. 15 déc. 2021, no 21-11.882, Bull. civ. IV, (forthcoming) ; D. 2022. Actu. 7 ; Rev. sociétés 2022. 173, note Reygrobellet ; JCP E 2022. 1067, note Dondero ; Dr. sociétés 2022, no 30, note Hamelin.
  23. COJ, art. L. 211-21. 
  24. The Hague Tribunal, May 26, 2021, C/09/571932/HAZA19-379, Bull. Joly juill. 2021, p. 6, obs. J.-M. Moulin; JSS 2021, n° 59, note C. Lepage, V. Saintaman and B. Denis; Gaz. Pal. 2021, n° 28, p. 24, obs. M.-P. Maître; Énergie – Environnement – Infrastructures n° 11, November 2021, comm. 86, F.-G. Trébulle ; D. 2021. 1968, obs. A.-M. Ilcheva ; RFDA 2021. 957, obs. C. Cournil. 
  25. To rule against the Dutch State in 2019, the Supreme Court based its reasoning on obligations undertaken by the State (prior to the Paris Agreement), on the respect for the right to life and private life (pursuant to articles 2 and 8 of the ECHR and the Constitution), as well as on a duty of duty found in the Constitution. 
  26. Contra, the recent Full Federal Court of Australia, March 15, 2022, Sharma and Others v. Minister for the Environment, Climate Law Blog, March 21, 2022,obs. M. A. Tigre: https://blogs.law.columbia.edu/climatechange/.
  27. The Hague Tribunal, idem., § 4.4.54. 
  28. L. Dubin, in V° Entreprises multinationales, Répertoire de droit international, Dalloz, Nov. 2021, n° 108.
  29. On this, see A. Dahan, ‘L’impasse de la gouvernance climatique globale depuis vingt ans. Pour un autre ordre de gouvernementalité’, Critique internationale 2014/1, no 62, p. 21-37, no 2 ; S. Maljean-Dubois and M. Wemaëre, La diplomatie climatique de Rio (1992) à Paris (2015), Paris, Pedone, 2015; S. C. Ayuk, ‘Chapitre 30. Le climat et l’Anthropocène. Cadrage, agentivité et politique climatique mondiale après Paris’, in R. Beau and C. Larrère (dir.), Penser l’Anthropocène, Paris, Presses de Sciences Po, 2018, p. 499-522, esp. no 7. The 1992 convention was ratified by France in 1994, see Law n° 94-106, Feb. 5, 1994.
  30. C. Le Bris, ‘L’humanité, victime ou promesse d’un destin commun ?’, RJE 2019/HS18, p. 175-191, n° 6, referring to the ICJ  citant les propos de la Cour internationale de Justice (CIJ), Avis consultatif du 8 juillet 1996, Licéité de la menace ou de l’emploi d’armes nucléaires, Rec. CIJ 1996, p. 241-242, §29, as well as its judgment dated September 25, 1997, Projet Gabcikovo Nagymaros (Hungary v. Slovakia), Rec. CIJ 1997, p. 41, §53, pursuant to which ‘the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’.
  31. This notion is supposed to refer to a peaceful and reasonable use of common environments that cannot be appropriated, to a fair distribution of wealth, as well as to objectives of conservation and equal access to resources, see A. Kiss, La notion juridique de patrimoine commun de l’humanité, Académie de droit international, Recueil de cours n° 175, 1982. 
  32. U. Beck, La société du risque. Sur la voie d’une autre modernité, (French trad. L. Bernardi), Flammarion, coll. « Champ », 2004 (original 1986 text), esp. pp. 56 et seq.; ‘Climate for change, or how to create a green modernity?’, Theory, Culture & Society 2010, 27, p. 254-266. See also, H. Jonas, Le principe responsabilité, une éthique pour la civilisation technologique, Cerf, 1979. 
  33. E. Brown Weiss, Justice pour les générations futures, Le sang de la terre, 1993; E. Gaillard, Générations futures et droit privé : vers un droit des générations futures, LGDJ 2011 and ‘Le patrimoine commun de l’Humanité’, in B. Parance and J. de Saint-Victor (dir.), Repenser les biens communs, Paris, Editions du CNRS, 2014, pp. 148-149.
  34. C. Le Bris, see ‘Humanité’, in M. Cornu, F. Orsi and J. Rochfeld (dir.), Dictionnaire des biens communs, PUF, Quadrige, 2017 (free translation from the original French).
  35. The approach is different, and the concept is used in singular form, in P. Dardot and C. Laval, Commun. Essai sur la révolution au XXIe siècle, Paris, La Découverte, 2014.
  36. E. Ostrom, La gouvernance des biens communs. Pour une nouvelle approche des ressources naturelles, Bruxelles, De Boeck, 2010, p. 301 (French translation of Governing the Commons: The Evolution of Institutions for Collective Action, Cambridge-New York, Cambridge University Press,1990). The efficient governance of the commons is supposed to be based ‘emerging’ norms reflecting eight design principles, see B. Coriat, V° Design principles, in Dictionnaire des biens communs, op. cit.: matching rules governing use of common goods to local needs and conditions, define clear group boundaries; ensuring that those affected by the rules can participate in modifying the rules; making sure that the rule-making rights of community members are respected by outside authorities; developing a system, carries out by community members, for monitoring members’ behavior; using graduated sanctions for rule violators; providing accessible, low-cost means for dispute resolution.
  37. E. Schlager and E. Ostrom, ‘Property-Rights Regimes and Natural Resources: A Conceptual Analysis’, Land Economics, 1992, 68, 3, pp. 249-262.
  38. On the failure, its reasons and its stages, see A. Dahan, art. cit. ; A. Dahan and S. C. Aykut, Gouverner le climat. 20 ans de négociations internationales, Paris, Presses de Sciences-Po, 2014, esp. p. 399 et s., evoking a ‘schism of reality’.
  39. G. Hardin, ‘The Tragedy of the Commons’, Science 1968, vol. 162, p. 1243, who concludes that only private property or public regulation could ensure that the long term is properly taken into account.
  40. M. Delmas-Marty, ‘Avant-propos : la COP 21, un pari sur l’avenir’, in M. Torre-Schaub (dir.), Bilan et perspective…, op. cit., p. 1.
  41. B. Latour, Face à Gaïa, op. cit., pp. 160-161, p. 172 et p. 187.
  42. H. Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy, [1980, 1st ed.], Princeton, Princeton University Press, 2nd ed., 1996. See also. S. M. Gardiner, S. Caney, D. Jamieson, H. Shue (ed.), Climate ethics. Essential readings, Oxford University Press, 2010; D. Bell, ‘Climate Change and Human Rights’, WIREs Clim Change 2013, 4:159–170; M. Bourban, Penser la justice climatique, Paris, PUF, 2018, p. 71-74.
  43. D. Bell, ‘Does Anthropogenic Climate Change Violate Human Rights’, Critical Review of International Social and Political Philosophy, vol. 14, n° 2, 2011, p. 99-124. 
  44. For more details depending on the litigation, see C. Cournil, ‘L’intégration de l’approche fondée sur les droits de l’homme dans le régime du climat’, in M. Torre-Schaub (dir.), op. cit., esp. p. 65 et seq. See also, Human Rights and Climate Change Working Group
  45. T. Morton, The Ecological Thought, Harvard University Press; Reprint edition 2012.
  46. http://edigest.elaw.org/sites/default/files/pk.leghari.091415.pdf
  47. General Court of the European Union, August 13, 2018, Carvalho e.a./Parlement et Conseil, Aff. n° T-330/18, JOUE, C-285. 
  48. German Federal Constitutional Court, March 24, 2021, BVerfG 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, available in three languages: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/FR/2021/03/rs20210324_1bvr265618fr.html. For commentaries from a German perspective, see Verfassungsblog : https://verfassungsblog.de/category/debates/der-klimabeschluss-des-bverfg/, not. C. Calliess, ‘“Elfes“ revisited ?’, VerfassungBlog, May 25, 2021, https://verfassungsblog.de/elfes-revisited/; J. Berkemann, DOV 2021. 701; S. Schlacke, NVwZ, 2021, p. 912 ; E. Hofmann, NVwZ 2021, p. 1587 ; C. Calliess, ZUR 2021. 355; L. Muckel, JA 2021. 610; C. Möllers, N. Weinberg, JZ 2021. 1069; R. Sinder, JZ 2021. 1079. From a French perspective, see AJDA 2022. 166, obs. A. Gaillet and D. Grimm.
  49. We refer here to an emblematic case which could have recognized the legal standing of these future generations: a case over deforestations brought before the Supreme Court of Philippines in 1993. See, T. Allen, ‘The philippine Children’s Case: Recognizing Legal Standing for the Future Generations’, Georgetown International Law Review, vol. 6, 1994, pp. 713-741. Generally, see E. Gaillard and D. Forman (eds.), Taking Legal Actions on Behalf of Future Generations, Peter Lang, 2020, 496p.
  50. For comparison purposes, see the French Constitutional Council, August 13, 2021, np. 2021-825 DC, delivered in a similar context regarding the French law ‘to combat climate change and increase resilience’ of August 22, 2021, noting that (the court) ‘did not have the power to enjoin the legislator’ to respond to the complaint of ‘inaction leading to the failure of France to comply with its greenhouse gas reduction targets’. For more details and some nuances, see F. Savonitto, ‘Le Conseil constitutionnel et le contentieux climatique. Un acteur au milieu du gué’, AJDA 2022. 152.
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