The French judiciary has stepped in Western countries’ struggle against climate change by condemning the executive branch for not taking adequate steps to lower carbon emissions: is it a piece of news to cherish or to be worried about?
1. The background of the legal action
In 2018, three associations and one foundation (Oxfam France, Notre Affaire à Tous, Greenpeace France, Pour la Nature et l’Homme) gathered signatures for a petition addressed to the Government (the so-called “Affaire du siècle”). The Government, which in the fifth French Republic is expression of, although not formally led by, the President of the Republic, had already organised the ‘Great National Debate’ in order to address public discontent with its policies and the turmoil cause by the ‘Gilet Jaunes’ movement. Therefore, the abovementioned NGOs, after meeting the executive, which rejected the allegations of ‘climate inactions’, were invited to take part in the initiative prompted by Emmanuel Macron to face his fellow citizens’ anger (Gouvernement,2019). Due to the unsatisfaction linked to the debate, the organisations cited the cabinet in front of the Paris Administrative Tribunal on grounds of violations of laws and pledges made by the French State at international level, which will be discussed below. Firstly, it is worth noting the shift of the environmentalists’ strategy, from trying to raise public awareness in the streets, maybe because of the broad consensus thus achieved, to taking executives in front of Courts, which had already proved quite effective (Oroschakoff,2019)
2. The Court’s ruling: enough for the environment?
The Court’s reasoning can be coalesced in few points (Torre-Schaub,2021):
a) Non-profit entities whose statutory oblectives comprise the protection of the environment are granted legal standing when acting “on behalf of the environment”
b) The French legal order provides for an obligation of the State to protect the environment and lower carbon emissions. This reasoning stems from provisions at constitutional (art.3 Charter of the Environment), international (arts.2 and 4 of the Paris Agreement), European (Regulation 2018/842 of the Parliament and Council) and statutory level (Code of the Energy, Code of the Environment), which in particular fix the amount of reduction of greenhouse gases emissions for the interval 2021-2030 and carbon neutrality within 2050
c) In the light of scientific evidence, citing the report of the National Observatory on Climate Change, and statutory provisions, it can be established a causal link between the Government’s inertia and the raising temperatures
d) Owing mainly to budget concerns, the symbolic demand of 1 euro for moral damages has been rejected. Therefore, the Court affirms it can only grant a ‘cognitory remedy’ and subsequently uncompliance with the obligation is not sanctioned
e) It is the Government’s responsibility to choose how to attain these abjectives, renewable energy choice cannot be compelled by the Court
3. Is the intervention of the judiciary desirable? The Court has thus deemed the Government responsible (Guillot,2021), but is not the climate policy to be determined by elected representatives on behalf of the people who conferred their democratic mandate? Is not it part of the political direction, that has to be determined by the aforementioned officials? Is this a power grab by the judiciary? The first question has to be answered in the affirmative, this is why, as illustrated above, the obligation to act against climate change is enshrined in the law, which is the result of the legislature’s will, and, subsequently, of the people’s will. In the light of this reasoning, the third question must be answered in the negative if, and as long as, it acts within the constraints set out by law, being the function thereof of determining the political direction, which must be upheld in the administrative action. Eventually, judicial constraint is the key to acquire the status of impartiality, as the Court’s reasoning showed in paragraph 2 letter e). 4. What’s next for climate law This historical ruling will likely have two main effects on different actors: the French Government will presumably take further action in order to avoid further litigation and French environmental organisation will feel legitimised in acting, in front of courts and outside them, as the prosecutors on behalf of the Environment. Furthermore, there could be a spillover effect worldwide, as NGOs and courts might be emboldened and take this ruling as an example, exactly in the same way with the pioneer ruling in the Netherlands. Neverthless, it must be borne in mind that real action is to be pursued at the administrative level, this is why electors sensitive to the issue must vote accordingly.
References Guillot,L. (02/03/2021) French court condemns government for climate inaction. Retrieved from:https://www.politico.eu/article/local-court-condemns-france-for-climate-inaction/, last consulted 02/21/2021 at 11:22 am Oroschakoff,K. (12/20/2019) Top Dutch court orders government to take action on climate change. Retrieved from https://www.politico.eu/article/top-dutch-court-orders-government-to-take-action- on-climate-change/, last consulted 02/21/2021 at 11:22 am Torre-Schaub, M. (02/10/2021) Décryptage juridique de l’« Affaire du siècle ». Retrieved fromhttps://theconversation.com/decryptage-juridique-de-l-affaire-du-siecle-155053, last consulted 02/21/2021 at 11:22 am Gouvernement (02/14/2019) Réunion avec les quatre associations à l'origine de la pétition "l'Affaire du siècle". Retrieved from https://www.gouvernement.fr/partage/10890-reunion-avec-les-quatre- associations-a-l-origine-de-la-petition-l-affaire-du-siecle, last consulted 02/21/2021 at 11:22 am The text of the decision can be retrieved at http://paris.tribunal- administratif.fr/content/download/179360/1759761/version/1/file/19049671904968190497219049 76.pdf
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