Climate Justice in Europe: The Growing Role of Courts
Corinne LepageLawyer, Co-Chair of the MENE
La Revue européenne du droit, December 2021, n°3
The groundwork of European power
With the Green Deal, the Climate Law, the European taxonomy, the 14 directives either new or to be modified, Europe has undoubtedly taken the measure of the scale of the climate challenge and initiated a profound legal reform to adapt the texts to the objectives that have been set, that is, to reduce greenhouse gas emissions by 55% by 2030 compared to 1990. Certainly, some would have liked the target to be more ambitious and rise to 65%, as Germany or Britain have decided. But the gap is already very large and will require much more profound transformations than those that most of our fellow citizens are considering today.
This is not in fact a half-hearted measure but a transformation of the whole of Society so that the expression “ecological transition” commonly used seems somewhat inappropriate. Indeed, this is not a transition. The word transition by definition implies going from one point to another, the point of arrival being perfectly known. In this case, the point of arrival is unknown for the good and simple reason that on the one hand, we are in a dynamic which should lead us to 2050 and carbon neutrality and, on the other hand, that the events that are likely to happen by then and even by 2030 will substantially modify the situation. In addition, the term transition contains a form of subliminal message implying that one needs to allow the necessary time; but in reality, the change will be brutal and sudden and the term transition therefore seems inappropriate.
The same is true of the word ecological. If indeed the challenges that must be overcome are those contemporary societies face due to climate change, the 6th extinction of species and predictably repeating pandemics, not to mention environmental pathologies, this does not mean that the transformation can be limited to the ecology itself.
Of course, this transformation is ecological insofar as the planetary limits now constitute the alpha and omega of the organization of our Society, starting with the modes of production and consumption which must adapt to these limits while until now, it is rather the planetary limits that had to deal with unlimited economic growth. However, the subject is not limited to ecology. It concerns the economy, the social, governance, in short: the whole of Society and this is why talking about ecological transition seems somewhat limited.
Either way, the European ambition is undeniable. European involvement in the fight against climate change, and gradually for the adaptation to climate change, is not limited to stating rules or to the provision of billions of euros to finance the transition, even if it is absolutely central. At the legal level, Europe is characterized by a particularly advanced case-law in what is called climate justice (1) which can ultimately lead to changes in the organization of powers (2).
I. The flagship role of European judges in climate justice
A. Cascading innovations in European case law
Europe is central to the evolution of climate justice. The subject of climate justice is a global subject since nearly 2,000 trials are taking place around the world, in all continents with a fairly rich case law in South America in particular. However, it must be noted that Europe is at the forefront of producing case law, in particular in the area of public law, but gradually, in the area of private law as well.
In terms of public law, the first major decision is European since it concerns the Urgenda case law inaugurated by the Netherlands in 2019. The decision rendered by the Supreme Court of the Netherlands on December 20, 2019 is certainly a landmark decision for multiple reasons. On the one hand, the questions which have been decided go well beyond the Netherlands, on the other hand the legal basis is that of Community law and European treaty law and finally, it has been and still is likely to set an international precedent.
This decision of the Supreme Court, which follows two favorable decisions for the Association Urgenda (which means agenda urgency) first of all reasserts the scientific knowledge relating to climate change and the commitments of States, in particular due to the United Nations Framework Convention on Climate Change and the Paris Climate Accords. The obligations of the Netherlands and the results obtained having been reasserted, the Court decides a whole series of questions of law which answers the objections which were those of the Netherlands but which more generally are those of all the States confronted with the same issue.
First of all, the obligation for a State to “do its share” results from Articles 2 and 8 of the European Convention on Human Rights which, on the basis of the work of the IPCC, set the obligation of reducing at least 25 to 40% of greenhouse gas emissions by 2020 for the Annex 1 countries to which the Netherlands belongs. The 25% target is therefore considered by the Court as an internationally recognized target to be met by the State. It is of course up to the State to determine the concrete measures to achieve this.
Secondly, the Court considers that Articles 2 and 8 apply, the taking into account of appropriate measures being compulsory if there is a real and immediate risk, that is to say a danger directly threatening the persons involved. With respect to Article 8, it applies and operates for the population as a whole; this obligation includes preventive measures compatible with the precautionary principle clearly reaffirmed twice by the Court and measures of reparation.
Third, the Court responds to the argument that Member States are not individually bound by any obligation by virtue of membership of the European Union. The Court clearly rejects this claim considering that each party is responsible for its “share” and therefore may be held accountable, that is to say, may have to assume its share of responsibility, including in litigation. The low share of emissions from the Netherlands in overall emissions is not taken into account by the Court.
At the procedural level, the Court recognizes the admissibility of the action carried out by the Association by considering that the grouping of interests is effective and efficient, and that it is therefore in conformity with article 2, paragraph 5 of the Aarhus Convention and article 13 of the European Convention on Human Rights.
Finally, the Court underlines the role of the courts, which is based on the fact that the State has a legal obligation which it can be ordered to fulfill, except when Dutch law provides an exemption. The court recalls that although it must not interfere in the making of political decisions as to the advisability of legislation, it is responsible for rendering a declaration of justice which implies that the entity concerned acted illegally by not adopting appropriate legislation.
Following the Netherlands, France has taken steps towards climate justice. The legal basis of the two Grande-Synthe decisions rendered by the Council of State on February 1 and July 1, 2021 differs from that adopted by the Dutch Supreme Court. The Council of State has in fact refused to rely on Articles 2 and 8 of the European Convention on Human Rights, as it has refused to rely directly on the Paris agreements, which amounts to recognizing a human right to climate.
On the other hand, it based its decision on national legislation and on the low-carbon trajectory derived from the commitments made by the Paris agreements, which are binding on the State, to note on the one hand, the climate deficiency over the period 2016-2019, and on the other hand, the inadequacy of the measures taken to remain on track towards the goal set for 2030. It should be noted here that the Council of State decision came before the 2030 target was raised from 40% to 55%. The French government has a March 22 deadline to amend its policy.
The Council of State’s decision is interesting not only in that it assess in 2021 the State’s capacity to reach its objectives for 2030 but also in the procedure of injunction used to force the State to take action, even if this injunction procedure, in reality, is not very restrictive since before the payment of a penalty is ordered it generally takes one or two additional court decisions.
The third and extremely innovative decision was devised by the Karlsruhe Court regarding the German climate law. This decision, rendered on April 29, 2021, differs from the previous two in that it is universal in scope.
First of all, the Constitutional Court admits the complaint filed by the citizens but not that of the Associations, considering that the Charter of Fundamental Rights of the European Union does not establish their right to act; it confirms the Dutch position by recalling that the duty of protection imposed on the State by the fundamental law, namely the protection of life and physical integrity, includes protection against nuisances caused by environmental degradation, regardless of the perpetrators and whatever the causes. It includes the duty to protect human life and health against climatic hazards and establishes an objective duty of protection.
The universal scope resides in the reference to the rights of future generations. The Constitutional Court recognizes that the trajectory planned until 2050 does not ensure that the rights and freedoms of the generations living in 2030 can be protected.
The Court also reasserts, as the Dutch Court did, that the fact that greenhouse gas emissions are produced by other States in much larger quantities does not alter the obligations incumbent on the State and that on the contrary, there is a constitutional necessity for Germany to take its own measures. Going further, it rules that Germany should refrain from actions likely to encourage other States to undermine international cooperation.
It also opens up a new perspective by considering that if the fight against climate change does not enjoy absolute primacy over the other interests at stake, the fact remains that any activity likely to lead to the temperature threshold being exceeded can only be justified when strict conditions are met, for instance the protection of fundamental rights.
We can cite, to a lesser extent, a decision delivered in Belgium as illustrating the rise of climate justice in Europe. Indeed, in a decision rendered by the Court of First Instance of Brussels on June 17, 2021, at the request of the SBL Klimaatzaak and 8,400 citizens, supported by 50,000 people, this Court condemned the federal State and the three regions for not having acted vigorously enough against climate change. However, the Belgian court refused to initiate an injunction procedure considering that this would take it beyond its own competence.
One may add the very unusual admissibility, that is to say without any prior exhaustion of appeal procedures, by the European Court of Human Rights of a request formulated by 30 young Portuguese against 30 Member States of the Council of Europe for not having enacted sufficient measures protecting them against climate change.
Thus, these different decisions draw a completely new landscape for climate justice in which the court is the arbiter of whether States engage sufficiently or not in policies to fight against climate change.
B. Corporations and climate justice
Jurisprudential innovation does not stop at the gates of power. It also penetrates businesses. In the 1,800 or 2,000 climate justice lawsuits that exist around the world, a number of them directly target companies either for greenwashing or for false advertising relating to climate action, while a few actions in responsibility have yet to be judged.
In this regard, we must consider the judgment rendered on May 26, 2021 by the Court of First Instance of The Hague in the Shell case; judgment appealed against since then. This Dutch decision, apart from being a first in chronological terms, is also a first in legal terms.
The complaint brought by the Milieue Defensie Association against RDS Holding, the corporation responsible for establishing the general policy of the Shell group comprising more than 1,000 Shell corporate entities, related to the recognition of the illegality of the millions of tons of CO2 emitted by these entities and aimed to reduce the volume of emissions directly and indirectly by at least 45% compared to the 2019 level by the end of 2030 at the latest.
In this highly commented decision, the court established the holding’s responsibility by considering that the adoption of the company’s policy did indeed have an influence on CO2 emissions which contributed to creating environmental damage effecting Dutch residents, that the holding determined the general policy of the group, and that the value chain exerted an influence in terms of policy development in general.
After establishing that it was the holding that bore the responsibility alongside the entities of the Shell group, the court considered that it should reduce its emissions by 45% by the end of the year 2030; that this was an obligation to achieve a fixed result for the activities of the Shell group which concerned not only the commercial relations of the Group but also the end users.
The legal basis retained by the court is an unwritten duty of care in accordance with the Dutch Civil Code. To deduce that this unwritten duty of care should contribute to the prevention of climate change, the court relied on human rights but also on the soft law approved by RDS such as the United Nations Guiding Principles for Business and Human Rights, the United Nations Global Compact, the OECD Guidelines for Multinational Enterprises.
This is therefore an extremely advanced use of soft law and also of the precautionary principle even if the term is not used since the court refers to the following formula: “in accordance with the scientific and technical understanding of risks where there are threats of serious damage to the environment having regard to the health and safety of persons, one must not invoke the absence of absolute scientific certainty to delay the adoption of effective measures aimed at preventing or minimizing such damage.”
Undoubtedly, other actions, particularly in France, call into question the duty of vigilance of companies which derives from the Sapin II statute, but no decision has yet been made on this basis in France.
From this brief summary, it results clearly that European case law has a universal scope due to the reference to the European Convention on Human Rights and therefore to the Universal Convention of Human Rights, to soft law applied throughout the world, and because of the reference to future generations. It is an invitation for a planetary transformation of climate law and climate justice.
The transformations to come also concern the relations between the interests at work and governance.
II. New relationships between the different social actors
A. A new role for supreme courts
First of all, it should be noted that this movement for climate justice puts the courts at the center of the debate. For example, the Council of State in the person of its vice president participated in two webinars organized by Yale University to comment on the two Grande-Synthe decisions.
That courts and specifically supreme courts take responsibility for the survival of humanity in the face of climate change is reflected by increasing references to articles 8 and especially 2 of the Declaration of the Rights of Man and by establishing that climate rights are human rights, which has also been established in many jurisdictions in Latin and South America.
The rise of judges is made possible by appeals. These appeals come from extremely varied entities: local communities that complain about the inaction of States, non-governmental organizations defending the environment and more specifically the climate, associations of young people who fear for their future; examples are multiple with admissibility conditions which may vary from one State to another.
Thus, if the French Council of State refuses individual appeal but admits the appeal of associations, the German constitutional court had the opposite reasoning by considering that the right to life and to a normal family life could only be invoked by natural persons and not associations. Belgium for its part has admitted both. The important point is that plaintiffs whoever they are can be considered admissible so that the decision can be rendered. However, the diversity of the plaintiffs clearly shows that a form of tacit alliance has been formed between judges and civil society defined as non-state actors to ensure the protection of life by maintaining an acceptable temperature level on earth. It is clear that this new alliance, on the one hand, rests on legal bases and on the other hand, would not have been possible without the carelessness of States.
B. A legitimate new role
One can question whether it is legitimate for judges to exercise legislative functions and to compensate for the inaction of States. However, to speak of a government of judges seems excessive since in reality no norm has been invented in the various case law.
Perhaps, one can consider the case law of the Federal Constitutional Court in Karlsruhe as the most creative or innovative but, one can find in particular in the UNESCO Universal Declaration of Human Rights for Future Generations the foundation of the reference to the said generations. The expression also appears in the Environmental Charter to which the preamble of the French Constitution refers. For the rest, the classic reference is either to the European Convention on Human Rights or to the Paris Agreements, or to the commitments made by the various corporations. The only relatively original feature which undoubtedly shocks States is the fact of considering that a commitment commits a State!
Indeed, political communication often trumps the strictly legal aspect. For many years, States and corporations alike have assumed that commitments only bind those who believe in them. However, case law for a number of years now has established that soft law containing the commitments of the various actors actually bind them. Thus, in the Erika decision, the Court of Cassation considered that the fact that Total did not comply with its internal vetting procedures, which were mere internal rules that in reality only committed Total towards itself, constituted a sufficient basis for establishing the fault and the fault of sufficient gravity to exclude the responsibilities provided for by the convention on civil liability for marine pollution by oil in the event of willful misconduct. This failure to comply with an internal rule was considered willful misconduct on the part of Total.
One can explain this jurisprudential orientation by the increasingly pressing demand of civil society with regard to the carelessness of States which, commitments after commitments do not really translate into action the promises that are made. The result is a steady increase in greenhouse gas emissions that has absolutely nothing to do with the expectation that the increase in temperature will be limited to 1.5 degree by the end of the century.
Finally, discordant voices are obviously being heard at the internal level about the eternal problem of the government of judges and the allegedly undemocratic nature of the decisions that are taken. We could first of all recall that it is not democratic to refuse to take measures to safeguard the future and the lives of citizens of different States. But above all, the intervention of judges, at the end of an adversarial process during which plaintiffs and defendants have equivalent rights and are forced to prove the arguments they put forward allows us to get out of communication campaigns and false information to stick to the facts.
It is true that this transformation is not without impact on the functioning of institutions and democracy. But at a time when the question of the acceptability of the transformation is more topical than ever, when the difficulties of public participation and of its level of information are obvious, recourse to the courts is eminently democratic and calming.
At the level of the European Union, the Court of Justice of the European Union has not yet had the opportunity to rule on the subject of climate justice. The role played by the European Parliament and by environmental and climate advocates in pushing community policy is undeniable. No doubt the decisions are taken in cooperation which implies an agreement between the Council and the Parliament. But the very dynamic role of the Parliament forces States to accept more than they would have been prepared to accept in the purely national framework. It goes without saying that it will be very interesting to follow the case law of the CJEU when it comes; before that, the European Court of Human Rights will rule on the complaint filed by the young Portuguese. If it established climate rights and a fortiori the rights of future generations, it is of course all Union law that would be affected.
We have entered times of great turbulence and not only in the meteorological sense of the term. The role of States is changing as the financial means of the private sector become enormous, as people rebel in democratic systems, as the content of the demands made on the State changes. In this context, the new balance of power that is being put in place under the aegis of the judge responsible for verifying that the commitments made are kept and that the priority given to life remains is a guarantee of being able to seek stable, acceptable and accepted solutions.
Corinne Lepage, Climate Justice in Europe: The Growing Role of Courts, Dec 2021,
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