Climate litigation continues to heat up as internationally, courts warm to the cause

Published: 30/11/2021

In what has been heralded by the French press as the ‘case of the century’, on 14 October 2021, the Administrative Court of Paris found France guilty of exceeding its greenhouse gas ("GHG”) emissions targets and ordered that it take immediate remedial action to repair the damage.

France is the latest in a growing line of admonished state and corporate parties following successful activist-led climate litigation.

Read the decision of Notre Affaire à Tous and Others v. France (No 1904967, 1904972, 1904976/4-1).

It remains to be seen how the UK and other European national courts will respond to climate inaction in the wake of this decision and increasing public scrutiny of state and corporate behaviours in response to climate change.

The case

On 17 December 2018, four NGOs (Foundation pour la Nature et l’Homme, Greenpeace France, Notre Affaire à Tous and Oxfam France) formally notified the French Government that they would commence an action in response to the government’s failure to enact sufficient measures to tackle harmful climate change.

Following the government’s dismissal of the notification, on 14 March 2019, the plaintiffs, backed by a petition signed by over 2.3 million people, initiated a lawsuit before the Paris Administrative Court, requesting that France:

  1. Be made to take appropriate measures to reduce its GHG emissions, accounting for its particular responsibility as a developed country, in line with maintaining the 1.5°C global heating target set out in the 2015 Paris Agreement;
  2. Take all necessary measures to meet its targets for reducing GHG emissions, developing renewable energies and increasing energy efficiency;
  3. Take the necessary measures to adapt the national territory to the effects of climate change; and
  4. Take the necessary measures to protect citizens’ lives and health from the risks of climate change.

Legal arguments

The NGOs grounded their arguments in the 2014 and 2018 reports of the Intergovernmental Panel on Climate Change (the "IPCC") which identified 1.5°C as the required target to mitigate against the adverse effects of climate change and stated that only drastic and expeditious reductions in GHG emissions would see this accomplished. The NGOs argued that as a member of the IPCC Plenary Assembly, the French state had adopted the "Summary for Policymakers" and demonstrated its adherence to this scientific consensus.

The NGOs argued that the state obligation to tackle climate change was founded on a general principle of law regarding the right to live in a sustainable climate system. This, they argued, stems not just from national law but also international law, such as the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement.

The decision

On 3 February 2021, the Paris Administrative Court found in favour of the plaintiffs and ordered the State to disclose, within two months, the steps it was taking to meet its climate targets. It further held that the State could be held responsible for failing to meet its own climate and carbon budget goals under domestic and international law, though it refrained from ordering compensatory damages for ecological harm because it had not been shown that the State could not repair the damage.

On 14 October 2021, the court found that France had emitted 62 million extra tonnes (subsequently reduced to 15 million in light of 2020 reductions) of GHG emissions between 2015-2018. The court ordered the State to take immediate action to comply with its commitments to reduce its GHG emissions and to repair the damage caused by its inaction, with a deadline of 31 December 2022. The manner of repair was left to the State to decide and implement.

Significance beyond state actions

This case is but one in a rapidly expanding cohort that has seen climate change inaction by governments and corporates challenged by sophisticated, litigation-focused NGOs.

It was arguably inspired by the January 2020 landmark judgment of Urgenda Foundation v State of the Netherlands, which saw the Dutch state taken to task over its alleged failure to effect appropriate action on climate change. The state was ordered to cut GHG emissions by at least 25% by the end of 2020.

As previously reported by Enyo, this was followed by the decision of the Dutch Hague District Court in May 2021, ordering Shell to amend its corporate policy to reduce its CO2 emissions by 45% by 2030. This decision was particularly significant as it extended beyond Shell, encompassing its suppliers and customers and was the first time that a national court had ordered a company to align itself with the CO2 emissions reduction targets under the Paris Agreement. The extension of the decision to Shell’s value chain demonstrates the potentially far-reaching consequences of such judgments, and the potential international ramifications given that likely targets of climate litigation tend to operate with long and complex global value chains.

Though strategic climate litigation has historically been targeted against governments and the so-called ‘Carbon Majors’, claims are growing in sophistication and, increasingly, are being brought against other GHG emitting sectors. Recent examples include automotive manufacturers, as in the German case of Deutsche Umwelthilfe (DUH) v Mercedes-Benz AG, and financial market actors, as in the Australian case of McVeigh v REST. This litigation trend will be a cause of concern to corporates domiciled in jurisdictions that publicly declare and support GHG emissions targets in the fight against climate change, especially in view of the latest COP26 commitments for countries to review their Nationally Determined Contributions on a yearly basis. Boards should, therefore, be encouraged to proactively address the issue to reduce exposure to activist-led claims.

While the litigation landscape is expected to continue to evolve, what is now beyond doubt is that, globally, national courts will play a key role in determining who bears the burden of climate change mitigation in response to the increasing demand for corporate and state transition to a more sustainable future.

For more information on ESG, please visit the ESG page or contact Tim Elliss and Anna Brownrigg.

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