The administrative judge and climate change

Didier-Roland Tabuteau, Vice-President of the French Council of State (Conseil d’Etat) ¹

Ever since the 1992 Earth Summit and the adoption of the United Nations Framework Convention on Climate Change ² , climate law has gradually established itself as a major requirement of the international community. It aims to address a vital challenge for our societies by establishing principles for protecting the planet and clarifying each country’s obligations regarding action against global warming. Largely based on case law, as cases come before the courts, this law has been gradually enriched by a proliferation of international and European initiatives, especially those aligned with the objectives outlined in the Paris Agreement adopted at COP21 ³ , chaired by Laurent Fabius, Minister of Foreign Affairs and International Development at the time.

Several models exist for environmental protection. It is possible to safeguard the environment through legal measures, such as establishing fundamental principles at the highest level, for example, by constitutionalizing key principles aimed at preventing damage caused by human activity. Protection can also be achieved through economic measures, such as monetizing the impact of polluting activities, according to the polluter-pays principle. In France, the administrative judge’s office stands out through several specific features that it employs in the environmental sector, particularly in regard to climate change issues and the enforcement of standards designed to address them.

Administrative judges, as part of a global movement (I), must first apply the law by developing ling term reasoning, considering the specific uncertainty tied to this time frame (II). To achieve this, the judges need to draw on specialized expertise and use the tools at their disposal effectively (III).

I – Actor of a global movement

     1 – Emancipation from geographical boundaries

Faced with a crisis that transcends borders, both in its causes and effects, the role of the judge should not be viewed in isolation or solely at the national level. Global warming, by its systemic nature, ignores borders and invites us to approach sovereignty, no longer in isolation but rather in solidarity according to Professor Mireille Delmas-Marty ⁴ . The French Council of State emphasized this idea as well in its study on sovereignty, calling for “a cooperative exercise of sovereignty” to address global challenges, with the fight against climate change as priority. ⁵ Like states and institutions, judges are called upon to cooperate, inspire one another, and work together to develop climate law.

Driven especially by nature conservation associations and local authorities, the past twenty years have seen a rising trend toward judicialization of climate issues. Climate litigation has become a key factor in ensuring the effectiveness of international commitments, with national courts in most parts of the world being asked to compel public authorities to take action. In July 2023, the United Nations Environment Programme reported a sharp increase in litigation since 2017, from fewer than 750 cases to over 2,000 in 2023. ⁶

One of the origins of this trend toward judicialization of climate-related disputes can be traced back to the April 2, 2007, ruling by the U.S. Supreme Court in Massachusetts v. Environmental Protection Agency ⁷ . This decision marked the beginning of a structured litigation strategy based on the ability of associations, local authorities, and even individual citizens to take legal action against authorities for failing to address climate change. Courts, which are increasingly called upon to rule on these matters, have consequently been prompted to apply increasingly stringent legal standards, given the significance of environmental issues. In Europe, a pivotal moment was the Supreme Court of the Netherlands’ Urgenda decision, which, based on the European Convention on Human Rights, required the Dutch government to strengthen its greenhouse gas emission reduction targets. ⁸

2 – Increasing consideration for the environment in all fields of law

The rise of environmental concerns, including climate change, introduces a new dimension to other legal areas. In France  public procurement law considers this by allowing the inclusion of environmental clauses. ⁹ Criminal law now features specific offenses related to environmental protection ¹⁰ , and mining law is gradually incorporating standards aimed at regulating extractive activities to protect the environment. ¹¹ Environmental law itself is divided into various domains focused on conserving biodiversity, ensuring a healthy environment for local communities, and, in the case of climate law, fighting global warming while helping societies adapt to climate change.

It also alters the way these rights are enforced. In terms of administrative justice, environmental law expands the scope of standards that must be enforced. This is evident with the recognition of the constitutional value of all rights and duties outlined in the French Charter for the Environment ¹² , including the right to live in a balanced and healthy environment, which qualifies as a fundamental freedom within the meaning of summary proceedings. ¹³ The same applies to the review of declarations of public utility for development projects, where administrative judges are increasingly considering environmental issues when weighing the benefits and drawbacks of such projects to determine their legality. ¹⁴

The administrative judge must also tailor their review to the specific characteristics of climate law, given the need to consider the long time frame over which this law operates and the global and technical nature of the issues at stake.

II – A need for long-term thinking

1 – Taking the long term into account

Public action on climate change is a medium- to long-term endeavor. This is evident both in how scientists assess developments, often referencing the pre-industrial era, and in the timeframe set for reaching targets, which are sometimes established by legislation for 2030 or even 2050.To ensure the effectiveness of climate law, judges must adapt their oversight to the specific timeframe of environmental issues as defined by these standards. This is precisely what the Council of State has done since 2020 in its Commune de Grande-Synthe rulings. ¹⁵ It first broke new ground by recognizing the interest of a local authority in taking action, despite the global nature of climate change and the fact that the localized effects that will affect this municipality, in particular sea level rise, will only become apparent in several years or even decades.

It also introduced a new type of control that could be described as “trajectory control,” ¹⁶ with regard to the objectives outlined in environmental standards which target long-term deadlines—2030, 2040, or even 2050. These targets were adopted by Parliament, which delegated the setting of annual milestones to decrees. Following an appeal by the municipality of Grande-Synthe against the refusal to implement additional measures to reduce greenhouse gas emissions in order to meet these targets, the judge considered that he could not delay his assessment until those dates without disregarding the urgency of action in the face of the climate crisis, or depriving his review of any useful scope, given the inertia inherent in climate phenomena. He must therefore ensure while ruling that these targets are achievable, on track to be met, and part of an objective and credible trajectory.

In doing so, the judge merely applied the law., By setting long-term goals and leaving it to the regulatory authorities to establish intermediate targets, it paved the way for courts to review the credibility of the measures taken to combat climate change. ¹⁷ Here, as usual, the administrative judge is just the guarantor of legal compliance. In these decisions from 2020 and 2021 ¹⁸ , after determining that the Paris Agreement had interpretative authority in reading the greenhouse gas emission reduction targets embedded in EU law and national law—aimed at implementing that agreement—it only overturned the refusal to take additional measures necessary to reduce greenhouse gas emissions produced on national territory in accordance with the law. ¹⁹ This method of monitoring progress is actually the logical result of legislative and regulatory authorities setting binding, long-term targets. It is also worth noting that the Court of Justice of the European Union operates similarly when it examines, even before the deadline for transposing a directive by Member States, whether their actions are likely to seriously undermine the achievement of the results required by that directive, ²⁰ meaning whether they are on the right track to achieve this transposition. However, it should be stressed that the provisions in respect of which this control was exercised are normative, not merely programmatic.

2 – Taking into account uncertainty and the need for caution 

Due to its uncertain nature, based on the anticipation of risks and the application of the precautionary principle, environmental law shares many similarities with health law.

In both areas, legislators and judges face evolving dangers that are sometimes invisible or delayed, but whose effects can be serious or even irreversible. The French Public Health Code encompasses numerous provisions aimed at ensuring environmental health and safety. ²¹ For example, Article L. 1311-6 mandates the development of a national plan every five years to prevent health risks related to the environment. The precautionary principle, which underpins these two branches of law, cannot be seen as encouraging inaction. On the contrary, it requires public authorities to act on known risks, even in the absence of absolute scientific certainty. ²² It thus calls for vigilance from public officials, whether to prevent a health crisis or to address environmental threats.

The state is therefore required to intervene to protect public health and the environment. These two areas are becoming increasingly interconnected: air pollution, soil contamination, chemical use, and climate change all have a direct impact on human health. This convergence of issues is reflected in the development of laws and the approach taken by administrative courts.

This is the case with the fundamental freedom recognized by the administrative judge, and which has already been reiterated, to “live in a balanced environment that respects health.” ²³

The Constitutional Council also drew a similar connection by recognizing “the protection of the environment, the common heritage of humankind” as a constitutional objective, in order to support the ban on exporting plant protection products prohibited in France. It aimed to prevent “harm to human health and the environment.” ²⁴

Environmental balance thus becomes a prerequisite for human health, and conversely, the protection of individuals justifies bold measures to preserve the environment and fight climate change.

III – The appropriate use of the administrative judge’s prerogatives

1 – The necessity for specialized expertise

Both the timing of the judge’s review and the uncertainties related to the subject matter and its technical nature require specialized expertise.In addition to the specialization of certain judges, who may hear numerous environmental cases, judges can employ various methods to ensure they have full knowledge of the facts before issuing their rulings. This includes the authority to commission expert reports ²⁵ and, if needed, to visit sites. ²⁶ They may also order further investigations, such as to evaluate the damage caused by failing to meet greenhouse gas emission reduction targets and to determine appropriate compensation, as the Paris Administrative Court did in the so-called “case of the century.” ²⁷ Additionally, they can avail the new tool of oral hearings[4], which allows judges to question the parties directly ²⁸ , as was done in the Friends of the Earth case.

It is based on such knowledge that the administrative judge can settle the case with full understanding of the facts and then ensure that his decisions are enforced, for example by verifying that the Government has taken measures to ensure that the greenhouse gas emission reduction curve aligns with the objectives set by the national legislature and by European law for implementing the Paris Agreement ²⁹ . Or that the government has taken all necessary sectoral measures to compensate for non-compliance with a previous carbon budget in accordance with the rule in the Civil Code that “any person responsible for ecological damage is required to repair it ³⁰ ” ³¹ .

2 – The use of all jurisdictional tools at the judge’s disposal

Finally, the rise in environmental litigation raises the crucial question of the tools available to judges to ensure the effective enforcement of their rulings, which are often complex to carry out and may involve sensitive local or even national issues. Without the proper tools, there is a significant risk that environmental law will remain merely declarative.In its decision Friends of the Earth ³² , the Council of State’s litigation panel imposed a fine of €10 million per semester to compel the State to meet its air quality commitments. The judges are thus adapting their methods to the issues at stake in the cases before them to fully exercise their authority and maintain the confidence of litigants.

The Council of State has also revised the options for settling a penalty payment so that it is not paid solely to the applicant, which could lead to unjust enrichment due to the amounts involved, nor to the State, which is the party responsible for enforcement and may not be motivated by the prospect of paying itself the sums in question. ³³ The payment may now be made “to a legal entity governed by public law that has sufficient autonomy from the State and whose missions are related to the subject matter of the dispute, or to a non-profit legal entity governed by private law that, in accordance with its articles of association, carries out actions in the public interest that are also related to that subject matter.” ³⁴

Administrative judges have adapted their approach, from the assessment of the conditions under which cases are brought to them to the measures used to enforce their decisions. It includes the oversight methods they employ to give full effect to environmental and climate standards which are intended, mainly , to implement the Paris Agreement.

*

Administrative judges are now facing crucial and, in some respects, vital issues of climate law. It is not their role to define what is desirable within the scope of their duties, “to substitute themselves for the public authorities in determining public policy or to enjoin them to do so.” ³⁵ However, in line with the separation of powers, they firmly assume their role as guarantors of legality. They interpret and apply the law, particularly the laws and regulations that implement the commitments of the Paris Agreement, and ensure that, when a dispute arises, the administration meets its normative objectives. In doing so, the administrative courtroom becomes more than ever a space for democratic transparency.

This momentum cannot persist without ongoing evolution of the standards themselves. The law can only advance public action in the public interest to the extent that the texts applied by judges become more detailed, precise, and adapted, especially to the scale of climate challenges. The Council of State also participates in this normative development: in its advisory role, it is involved early in the drafting of bills, ordinances, and decrees. In its research role, it also issues recommendations, either on its own initiative or at the request of the Prime Minister, with a view to better serve the public interest. These roles enhance and deepen its contribution to shaping climate law capable of supporting the vital effort to fight and adapt to climate change.

1. This article was written in collaboration with Jean-Baptiste Desprez, administrative magistrate, special advisor to the Vice-President.
2. Adopted in New York on May 9, 1992, signed by France on June 13, 1992, and published in France by Decree No. 94-501 of June 20, 1994.
3. Adopted on December 12, 2015, signed by France in New York on April 22, 2016, and published in France by Decree No. 2016-1504 of November 8, 2016
4. Mireille Delmas-Marty, ‘Governing Globalization’, Revue européenne du droit, Sept. 2020.
5. Annual study by the Council of State, 2024, proposal no. 10 of the study.
6. UN Environment Programme, Global Climate Litigation Report: 2023 Status Review (July 2023).
7. Massachusetts v Environmental Protection Agency 549 US 497, 127 S Ct 1438 (2007).
8. Urgenda Foundation v State of the Netherlands (Supreme Court of the Netherlands, 20 December 2019).
9. Article L. 2111-1 of the French Public Procurement Code requires public purchasers to take sustainable development objectives into account when determining the nature and scope of their needs: “The nature and scope of the needs to be met shall be determined precisely before the consultation is launched, taking into account sustainable development objectives in their economic, social, and environmental dimensions.”
10. With regard to waste (e.g., Article L. 541-46 I. 4° of the French Environment Code) or water pollution (L. 216-6 of the French Environment Code).
11. See Article L. 161-1 of the French Mining Code for the obligations that must be met by research and exploitation work, and the interpretation of these provisions: CAA of Bordeaux, July 16, 2021, Minister of Economy, Finance and Recovery, No. 21BX00295-21BX00715- and No. 21BX00294-21BX00716.
12. Commune d’Annecy (CE Plenary, 3 October 2010) No 297931, aff No 19/00135
13. Judge of summary proceedings of the Council of State, September 20, 2022, No. 451129
14. Katarzyna Kmonk, ‘Les préoccupations environnementales dans la mise en œuvre du contrôle du bilan’ (2013) 2 Revue du droit public 401.
15. Commune de Grande-Synthe et al (CE, 19 November 2020 and 1 July 2021) No 427301.
16. Bruno Lasserre, ‘L’environnement : les citoyens, le droit, les juges’ (Opening speech at the joint meeting of the Council of State and the Court of Cassation, 21 May 2021).
17. The Constitutional Council subsequently confirmed this interpretation of the legal scope of these objectives: Constitutional Council, Decision No 2022-843 DC (12 August 2022).
18. See note 15.
19. Article L. 100-4 of the French Energy Code.
20. Case C-129/96 Inter-Environnement Wallonie ASBL v Région Wallonne [1997] ECR I-7411.
21.  See Xavier Bioy, Anne Laude and Didier Tabuteau, Droit de la santé (4th edn, Presses Universitaires de France 2020) 127 ff.
22.  Association Ban Asbestos (CE, 26 February 2014) No 351514 (on asbestos).
23.  See note 13.
24.  Constitutional Council, Decision No 2019-823 QPC (31 January 2020).
25.  Articles R. 621-1 et seq. of the French Code of Administrative Justice.
26.  Article R. 622-1 of the French Code of Administrative Justice.
27. Association Oxfam France et al (Paris Administrative Court, 3 February 2021) No 1904967 and others.
28.  Articles R.625-1 and R. 625-2 of the French Code of Administrative Justice.
29.  Commune de Grande-Synthe (CE, 10 May 2023) No 467982.
30.  Article 1246 of the French civil code.
31.  See note 27.
32.  Association Les Amis de la Terre France (CE Plenary, 10 July 2020) No 428409.
33.  Pursuant to Article L. 911-8 of the French Code of Administrative Justice, which provides that “The court may decide that part of the penalty payment shall not be paid to the applicant. / This part shall be allocated to the State budget.”
34. Association Les Amis de la Terre France (CE Plenary, 10 July 2020) No 428409
35.  Amnesty International France et al (CE Ass, 11 October 2023) No 454836; Ligue des droits de l’Homme et al and Syndicat de la magistrature et al (CE Ass, 11 October 2023) Nos 467771 and 467781.