There have been three major climate litigation victories in Europe in the last few months – two in France and one in Ireland. The cases are important nationally, but also internationally, as they set another example of nation-states being held accountable for a failure to meet climate targets.
What is the impact for Canada? Canadian courts are out of touch with climate change – there have been a few positive rulings on narrow cases, but all the big cases that are tackling the real global issue have been rebuffed (post coming on that next).
Most importantly – each case that is won (or even brought) in other states increases the pressure on courts at home to do the right thing. When you reference cases abroad in climate litigation the other side will invariably say, and the court may adopt, “that is not binding here (or even relevant)” but the truth is that we live in an international community, tied together by millions of legal agreements, economic, social, and political connections, and such rulings do have moral force. As they stack up they create pressure through embarrassment. And so, they are always worth referencing, and always worth bringing.
Regarding the two French cases, Louise Fournier, Climate justice lawyer at Greenpeace international, said “[w]hile the two legal actions are based on different laws, brought in different jurisdictions by different entities, in both instances it is about demonstrating that the State is not meeting its general and specific obligations to mitigate and adapt to climate change and that it does not respect its own climate targets.” (pers. comm.) It’s impressive to see two successful cases in one nation state in the same year, and an inspiration to climate advocates and litigators.
Case 1 – Commune de Grande Synthe v France
The first case in France came down last November, brought by the community of Grande-Synthe against the government of France for exceeding climate targets. The case is brought under the European Convention on Human Rights and EU Law. The court, the Conseil d’Etat, said in its statement :
On the merits of the case, the Conseil d’Etat has noted that while France has committed itself to reducing its emissions by 40% in 2030 compared to 1990 levels, it has, in recent years, regularly exceeded the “carbon budgets” it had set itself. Moreover, a decree of 21 April 2020 postponed most of the reduction efforts after 2020. Before final ruling on the request, the Conseil d’Etat is requesting the French Government to justify, within three months, how its refusal to take additional measures is compatible with the respect of the reduction path chosen in order to achieve the targets set for 2030.
The case was referred to the Conseil d’Etat after the community of Grande-Synthe received a refusal from the Government to take additional measures in order to meet the objectives of the Paris Agreement. The French government’s response is due sometime in March.
Case 2 – Oxfam France, Greenpeace France et Notre Affaire A Tous, and la Fondation pour la Nature et l’Homme v. France
The second case was brought by major ENGO’s Oxfam France, Greenpeace France et Notre Affaire A Tous, and la Fondation pour la Nature et l’Homme, and was driven by a petition which garnered 2.3 million signatures, the most ever in France’s history. This reflects the value of climate litigation which is citizen-driven. You can read the case in French here.
The Plaintiffs were also challenging the government’s failure to meet climate targets, and addressed them sector by sector, on the basis of civil responsibility. Paris’ administrative court, in finding a failure to meet targets which constituted a breach of French law, ordered the government to pay one euro to each of the ENGO’s, ruling that government failures “undermined the collective interests defended by each of the applicant associations.”
This is a nominal award, but the victory is a legal and ethical one, not a monetary one.
The Court’s statement said “[t]he judges examined whether there was a causal link between this ecological damage and the various breaches alleged against the state in the fight against climate change. They held that the state should be held responsible for part of this damage if it failed to meet its commitments to reduce greenhouse gas emissions.”
The connection between failure to meet targets (including ongoing ones) and responsibility, with financial and monetary implications, is an important one.
A lawyer on the case said “[t]his is the first recognition by the courts of the responsibility of the French State for its climate inaction.” Greenpeace summarized the importance of the case as:
It’s a victory of truth over the denial of the State, who has relentlessly claimed its actions are sufficient, despite evidence (GHG emissions consistently over carbon ceilings, reports from the High Council for the Climate, etc.). Today justice sides with all those who have been warning about the climate crisis for decades.
The recognition of the State’s fault and responsibility is a crucial step to obtain a court order forcing the State to act.
The plaintiffs here Oxfam France, Greenpeace France et Notre Affaire A Tous, la Fondation pour la Nature et l’Homme) have also been accepted as intervenors (intervention volontaire) in the first case, Commune de Grande Synthe v France, before the Conseil D’État.
Case 3 – Friends of the Irish Environment v. Ireland
This case was first brought by Friends of the Irish Environment (FIE) in 2017 challenging the National Mitigation Plan as violating Ireland’s Climate Action and Low Carbon Development Act 2015 (“the Act”), the Constitution of Ireland, and obligations under the European Convention on Human Rights, particularly the right to life and the right to private and family life.
FIE lost at the first instance, and then on appeal asked the Supreme Court to skip the regular appeal steps due to the emergency nature of the case.
The Supreme Court granted appeal and allowed FIE to come straight to the Supreme Court. The Court then ruled in FIE’s favour, quashing the National Mitigation Plan for lack of specificity, saying “a compliant plan must be sufficiently specific as to policy over the whole period to 2050.”
On the negative, the Court found that FIE lacked standing to bring claims under the Constitution or ECHR, and that FIE had not made a strong enough case for a right to a healthy environment.
To reflect that these climate cases are influential on other state courts, even if not binding (which they clearly are not) – the Irish Supreme Court here quoted and relied on the Urgenda case (The State of the Netherlands v. Urgenda Foundation (C/09/456689/ZA)), at para 5, to say;
… this does not release the State from its obligations to take measures in its territory within its capabilities which in concert with the efforts of other states provide protection from the hazards of dangerous climate change.
Climate change litigation is unique, as David Hunter, Professor of international and comparative environmental law at American University’s Washington College of Law, aptly described it, “[t]he entire world is at once simultaneously both a potential plaintiff and defendant.” In Hunter’s view climate litigation is “mutually reinforcing” and this is how the international community is enforcing human rights under the Paris Agreement, informally, case by case. He also said that;
… the debate over whether specific theories will prevail or what remedies can be fashioned in a specific case misses much of the significance of these litigation strategies. Just the acts of preparing, announcing, filing, advocating and forcing a response have significant impacts—and of course some will prevail.
Indeed – these three European cases will have an impact on climate litigation here in Canada, whether “the other side” admits it or not. This is how we – climate advocates – are enforcing our respective nation’s climate targets under Paris.
A final note – FIE are also bringing a case challenging an LNG terminal on the basis of climate change. This is another case to watch, as well as Torres Straight Islanders v Australia, Sacchi v Argentina, and others in Brazil, France, and elsewhere.