France : Notre Affaire à Tous and Others v France
On 3rd February 2021, the Administrative Court of Paris issued a first ruling in favour of the Plaintiffs in “L’affaire du siècle”, the “case of the century”, a climate claim brought by four French NGOs.
The Plaintiffs claimed that the French state was not doing enough on climate change, that its actions were inadequate. Specifically they asked the court to order the French state to -
1. Take proper measures to reduce greenhouse gas emissions in the atmosphere - in due proportion considering global emissions, and taking into account the particular responsibility accepted by developed countries - at a level compatible with the objective to contain the rise of the average temperature of the planet below the threshold of 1.5 °C compared to pre-industrial levels;
2. Take, at least, all necessary measures to achieve France's targets for reducing greenhouse gas emissions, developing renewable energies and increasing energy efficiency;
3. Take the necessary measures to adapt the national territory to the effects of climate change;
4. Take the necessary measures to protect citizens’ lives and health from the risks of climate change.
They cited the French Charter for the Environment, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and a general principle of law protecting individual rights with respect to “a preserved climate system”, basing this not only on French Law, but also on international law, including the Stockholm Declaration, the World Charter for Nature, the Rio Declaration, the United Nations Framework Convention on Climate Change, the Kyoto protocol, the Paris Agreement, the Climate action and renewable energy package for 2020, the Decision n°406/2009/CE of the European Parliament and of the Council dated 23 April 2009.
In other words, they based their claim on the whole history of international law protecting the climate - and in the Administrative Court of Paris, they won their argument. In some ways, this French case is similar to one decided by the Irish Supreme Court, which we reported on in 2020 https://www.cop26andbeyond.com/blog/irish-supreme-court-judgement a ‘rights based’ claim that the state had to do more and go further, faster, to address climate change.
The new French climate law will have to take account of this Court victory, and the French National Assembly responded by enacting a wide ranging climate change bill designed, amongst other measures, to cut greenhouse gas emissions by 40% against 1990 levels by 2030. So the case was of major legal importance and had immediate and significant legal effects.
Germany: Neubauer et al v Germany
On 29 April 2021, Germany’s constitutional court ruled that Germany must update and improve its climate law, especially for the period after 2030, so as not to load all the consequences of climate change unfairly onto the next generations. The court held the existing Federal Climate Change Act to be partly unconstitutional in failing to address these further aspects adequately.
One of the plaintiffs in the case was Sophie Backsen (22) from the North Sea island of Pellworm, who feared that rising sea levels would submerge her family’s farm.
The plaintiffs’ lawyer, Dr Roda Verheyen commented that –
“The court focuses on the civil liberties of future generations, saying those rights are being infringed already today.”
With significant elections in prospect, the political response to this important ruling has again been immediate. Government Ministers took steps to strengthen the climate law, with Finance Minister Olaf Scholz confirming that the German government would now aim to cut emissions by 65% by 2030 against 1990 levels, up from the previous target of 55%.
Again, this in an important legal victory in the courts for environmental and climate campaigners, including Greenpeace and Fridays for the Future, that has already resulted in measurable and significant changes in the national law.
Future climate litigation?
There have now been significant climate judgements based on claims that plaintiffs’ rights have been infringed by inadequate government action, and these have had impacts in a number of jurisdictions, including the Netherlands, Ireland, Pakistan, France, Germany.
It seems inevitable that future climate litigation in the next ten years and more will also be based upon arguments of inconsistency. If a country is a Party to the Paris Agreement on Climate Change, if it has enacted legislation promising to achieve ‘net zero’ emissions by 2050 and significant reductions by 2030, it is easy to see how future claims will be based in part on arguments that these commitments cannot be consistent with, for example, continued use of, or exploration for, fossil fuels, or fossil fuel investments or subsidies at home or abroad, or new coal mines, or airport expansion plans and so on.
But Dr Roda Verheyen’s other case, of Saul Luciano Lliuya v RWE, could yet surpass in importance all of the ‘rights based’ cases prompting governments to do more. The reason for this, as we reported in an earlier article on the case, https://www.cop26andbeyond.com/blog/the-peruvian-farmer is that, very unusually, it seeks to attribute a measurable percentage responsibility for climate change to an individual, (in this case German) company, based upon analysis of its reported emissions: and then applies that to measurable damage caused to a plaintiff in Peru, risking loss and damage from dangerous flooding from melting glacial lake water. If this case is decided in favour of Saul Luciano Lliuya, the impacts should be felt in the boardrooms of all companies contributing to global warming and all those funding them. So far, it has been decided that the German court will travel to Peru to assess the evidence, which is significant in itself.