In June 2017, French President Emmanuel Macron solemnly pledged, in his unmistakable French accent, to “make our planet great again”. Four years later, the story has not unfolded quite the way it was expected to. On 3 February 2021, the French state was found guilty by the Paris Administrative Court of “illegal climate inaction” for failing to take sufficient measures to curb emissions of greenhouse gases (GHG), thus falling short of a trajectory that would keep global warming below 1.5 degrees by the end of the century.
Drawing evidence from reports of the Intergovernmental Panel on Climate Change and the National Observatory on the effects of global warming, the court recognized existing and future ecological damage in the “modification of the atmosphere and of its ecological functions”, triggered by the illegal surplus of man-made GHG emissions caused by state inaction. France has emitted around 89 million tonnes of CO2 equivalent over and above its objectives for 2015-2019.
The court asserted that the state’s commitments are hard law, not mere political statements of intent. Further, it demanded to evaluate, in a follow-up hearing to take place within two months, which concrete measures will need to be taken. This is inspiring for climate justice worldwide, as the aim is to force governments enforce the legislation that has been passed.
In India, the activism of courts, particularly the Supreme Court in public interest litigations in which a government may be summoned to explain its failings and present its remedial action, is taken for granted. But in French law, such a direct and concrete injunction to the state to get its act together is truly novel and revolutionary.
The ‘Case of the Century’, as it is dubbed, was filed against the French state in December 2018 by four reputable non-government organizations (NGOs): Notre Affaire A Tous (‘our common concern’), Greenpeace-France, Oxfam-France and the Fondation Pour la Nature et l’Homme. In lay terms, the underlying question before the court was whether it was acceptable for legal commitments made by the state not to be implemented satisfactorily.
The court found unequivocally that the state was legally bound by domestic and European legislation as well as international treaties such as the Paris Agreement, which was signed with great gusto at the Cop21 in December 2015, spelling out the objectives of reducing GHG emissions by 40% by 2030 and achieving carbon neutrality by 2050.
Yet, the court indicated, the current trajectory shows that the objectives would not be attained. The wording of the judgement is explicit (the state “chose to subscribe to some commitments” and “set itself” objectives) and points to what has been described as a new form of “governance of commitments”, by which a promise is indeed a promise. The court’s order of a second hearing on practical measures to be taken isn’t about the judiciary encroaching on the government’s turf. It is about enforcing existing legislation, and taking the state at its own word.
International legal instruments are often regarded as ‘soft law’, and their enforcement is uneven. Only a few countries, such as Costa Rica, can show an encouraging carbon trajectory to the 2050 horizon. Indeed, a February 2021 United Nations report warns that of the 197 signatories to the Paris Agreement, only 75 governments have actually submitted their five-year progress report, signalling a lack of interest at the very least.
In this global context of general government apathy, climate justice cases are being filed worldwide on the expectation that courts will recognize the climate urgency and demand to see effective action by governments. According to the Sabin Centre for Climate Change Law at Columbia University, US, around 1,500 such cases are currently before courts all over the world, a sharp rise from 885 cases in 2017.
Hence the historical significance of the French decision. It is the first decision worldwide to formally recognize an implemention failure of the state and its consequent legal responsibility for ecological damage linked to global warming.
From now on, French citizens will be able to approach the courts in climate cases, as long as they can show damage and causality, and climate justice petitions and courts worldwide will be able to draw inspiration from it. This is a big victory for global climate jurisprudence, which seeks to compel states to stand by their obligations.
The ‘Case of the Century’ is also groundbreaking in that it purports to be a case for and by the people. Simultaneously with the court case, the four NGOs launched a public petition to support their action and create popular momentum. The response was an overwhelming 2.3 million signatures, clearly signalling that the people of France understood the issues at stake and that their government had not been doing enough to fight climate change.
The trans-generational nature of the damage caused by climate change was also touched upon by the Paris Administrative Court. This might well be one of the crucial questions before courts all over the world in the years to come.
Caroline Juneja is a French lawyer who has lived and worked in various fields in India for close to 25 years