Arriba-Sellier, Nathan de

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Another Urgenda in the makingNathan de Arriba-Sellier 2020-11-25T13:28:16The landmark Urgenda decision of the Hoge Rad – the Netherlands’ Supreme Court– in 2019 paved the way for high-stakes litigation against states and governmentsto force them to scale up climate action. Last week in Commune de Grande SyntheI, the Conseil d’Etat – France’s highest administrative court – delivered a powerfulruling on France’s obligation to reduce greenhouse gas emissions. It is symptomaticof this new trend of enhanced environmental rights in light of climate change.Commune de Grande Synthe I sets a landmark precedent for climate litigationin France. Moreover, it could inspire other courts across Europe, including theEuropean Court of Justice (ECJ), to pursue the way opened by Urgenda and acceptmore climate-related challenges.The Conseil d’Etat’s reasoning in Commune deGrande Synthe IIn Commune de Grande Synthe I, the municipality of Grande Synthe, a NorthernFrench city next to Dunkerque (Dunkirk), and its Green mayor Damien Carêmeasked the government to take all measures necessary to reduce greenhousegas (GHG) emissions and respect France’s international commitments, and tomake climate change “a binding priority”. The tacit refusal of the government waschallenged by the municipality of Grande Synthe and Damien Carême before theConseil d’Etat – a classic form of remedy afforded by French administrative law,provided that the government is competent, and that the applicant is directly andpersonally affected by its refusal. This sets the stage for France’s first “climatelitigation” case, according to the Conseil d’Etat’s rapporteur public.In this case, the Conseil d’Etat made a series of determinations that have thepotential to transform French environmental and administrative law in the samemanner as the Urgenda case in the Netherlands. Firstly, although it found theapplication of Damien Carême in personam inadmissible despite his currentresidence in an area exposed to climate change, the Conseil d’Etat consideredthat the municipality of Grande Synthe had the right to challenge the government’stacit refusal, as its locus standi resulted from the impact of its “direct and certain”exposure to climate change, and more particularly sea rise. Besides, the Conseild’Etat notably accepted the interventions in this case of the Paris and Grenoblemunicipalities, due to their “very strong” exposure to climate-related risks.The second landmark determination made by the Conseil d’Etat considered therelevant normative framework to review the legality of the government’s tacit refusal.In this respect, the Conseil d’Etat dismissed the request of making climate change“a binding priority” as unfounded. By contrast, it found that the request related toGHG emissions reductions has a strong basis in law. This results from a combined- 1 -reading of International, European, and national law, which all set obligations forGHG emissions reduction. Although the Conseil d’Etat conceded that both theUnited Nations Framework Convention on Climate Change (UNFCC) and the ParisAgreement lack direct effect, it considered these international agreements to berelevant for the interpretation of European and national law which refer to andimplement them. It noted that both the EU’s first Energy-Climate package of 2009and second Energy-Climate package of 2018 set precise limits of GHG emissions forFrance (-14% for 2020 and -37% for 2030, compared to 2005). National law upholdsthese obligations and provides, in addition, that France should reach “climateneutrality” by 2050 and sets a “carbon budget” for every five-year-period.Based on this normative framework, the Conseil d’Etat found that the objectives ofGHG emissions reductions are enforceable against the government. In this respect,it noted that France substantially exceeded its first “carbon budget” set for theperiod prior to 2020. It also cited the 2019 and 2020 annual reports of France’s HighCouncil on Climate, an independent administrative body of experts. The Conseild’Etat also pointed out that the government substantially raised by decree the ceilingof its second carbon budget for the 2019-2023 period, while postponing the bulkof the effort to the period before 2030, a pathway that, according to the Conseild’Etat, “has never been reached until now”. This contrasts with the conclusions ofthe International Panel on Climate Change referred to by the Conseil d’Etat, whichhighlight the mounting climate-related risks at constant temperatures. The EuropeanClimate Law proposal of the European Commission is also mentioned by the Conseild’Etat, as it would substantially increase the effort required by limiting EuropeanGHG emissions to -5% for 2030 compared to 1990 (from the previous target of -40%for 2030 compared to 1990).Yet, the Conseil d’Etat fell short of deciding on the merits of this case. Instead, itordered further investigation by requiring the government to submit within threemonths evidence that its position is compatible with France’s objectives of GHGemissions reduction. Were the government to fail to justify its pathway, the Conseild’Etat could order it to take all measures necessary to correct France’s trajectory.European courts are getting involved inenvironmental protectionThis first ruling in Commune de Grande Synthe is part of a greater European trendof courts getting actively involved in protecting environmental rights in light of climatechange. In France, it represents a breakthrough similar to the recent finding of theConstitutional Council in UIPP that the protection of the environment represents anobjective of constitutional value. The Conseil d’Etat’s ruling has laid the foundationof a French Urgenda, as the Conseil d’Etat signaled its readiness to ordering theFrench government to take all measures necessary to comply with its climate-relatedcommitments. By considering the GHG emission limits enforceable against thegovernment, France’s highest administrative court also followed the example of theHoge Rad.- 2 -It is particularly striking that these supreme national courts contradict the Europeanprecedent set by the ECJ in 2011. In Air Transport Association of America et al.v Secretary of State for Energy and Climate Change, the ECJ’s grand chamberrejected the claim that the targets set by the Kyoto Protocol to the UNFCC couldbe relied upon for the purpose of assessing the validity of EU law, as “the partiesto the protocol may comply with their obligations in the manner and at the speedupon which they agree”. Although EU law now refers extensively to the UNFCC andthe Paris Agreement, and the European Climate Law will enhance the incorporationof their principles, it remains unclear whether that would be enough for the ECJ toreconsider its position.The Conseil d’Etat’s ruling may convince the ECJ to take a more open positionregarding locus standi. The ECJ’s position for measures adopted by EU institutions,first spelled out in Plaumann in 1962, has long been criticized as too restrictive.However, a challenge of the municipalities of Paris, Brussels and Madrid against aCommission delegated regulation on oxides of nitrogen emissions limits has beenrecently admitted by the General Court and is currently being appealed beforethe European Court of Justice. This may be the occasion for the ECJ to adopt areasoning similar to the Conseil d’Etat’s in Commune de Grande Synthe I.Commune de Grande Synthe I, thus, sets a landmark precedent for climate litigationin France and follows the European pathway opened by the Hoge Rad in Urgenda.Yet, the Conseil d’Etat’s ruling falls short of the Urgenda ruling. Unlike the Hoge Rad,the Conseil d’Etat shied away from referring to the European Convention of HumanRights and particularly its articles 2 and 8 (on rights to life and to privacy and familylife) and, thus, did not recognize a general, enforceable right to the protection againstclimate change. Finally, it remains to be seen whether the Conseil d’Etat will takethe last step in a forthcoming Commune de Grande Synthe II decision and orderthe French government to take all measures necessary to correct France’s climatepathway.- 3 -

Another Urgenda in the making

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Another Urgenda in the making

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