Notre Affaire à Tous and Others v. France

Summary:

On December 17, 2018, four nonprofits sent a “lettre préalable indemnitaire” (letter of formal notice) to Prime Minister Edouard Philippe and 12 members of the French government, initiating the first stage in a legal proceeding against the French government for inadequate action on climate change. This type of letter is part of a legal proceeding known as “recours en carence fautive” (action for failure to act). The plaintiffs allege that the French government’s failure to implement proper measures to effectively address climate change violated a statutory duty to act. The four plaintiff groups are Fondation pour la Nature et l’Homme (FNH), Greenpeace France, Notre Affaire à Tous and Oxfam France. In their press release, they describe the lawsuit as challenging the state's inaction on climate change and failure to meet its own goals for reducing greenhouse gas emissions, increasing renewable energy, and limiting energy consumption.

On February 15, 2019, the French government rejected the plaintiffs' request. On March 14, 2019, the plaintiffs initiated the lawsuit by filing a "summary request" before the Administrative Court of Paris. The plaintiffs request that the State of France be enjoined to remedy its inadequate action on climate change. Specifically, they request the court to order France 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 further request compensation for the damages suffered as a result of the State’s failure to tackle climate change to be paid as “the symbolic sum of 1 euro for their moral prejudice.”

According to a translation of the legal request, plaintiffs argue that the government has both general and specific legal duties to act on climate change. Its general duties stem from 1) the French Charter for the Environment (“the Charter”), the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHR), and 3) the general principle of law providing the right of every person to live in a preserved climate system. Under the Charter, plaintiffs point to citizens’ constitutional rights to live in a healthy and ecologically balanced environment and argue the government has a duty of care to “take all necessary measures to identify, avoid, reduce and compensate the consequences of climate change.” Like other recent international cases, they point to further obligations of the state to act on climate change to uphold the rights guaranteed under Articles 2 & 8 of the ECPHR, respectively “the right to life” and the “right to respect for private and family life.” They argue that these rights require States “to implement a legislative and regulatory framework and to adopt practical measures meant to fight efficiently against climate change.”

Plaintiffs further base their claims on a “general principle of law” providing a right to a “preserved climate system” which they argue stems from national law (such as the preamble of the Charter for the Environment, article L. 110-1 of the French Environment Code, etc.) and international law (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). Plaintiffs additionally argue the State has further “specific” obligations to mitigate greenhouse gas emissions under EU and national law as well as specific obligations to take action to prepare for the impacts of climate change on France.

On June 23, 2020 the government responded. According to the plaintiffs, the government asserted that it was taking action to address greenhouse gas emissions, and that the time has not elapsed for it to meet its 2020 goals.

The case was heard in court on January 14, 2020. At the hearing the public rapporteur (independant consultant judge who provides an opinion to help guide the court's decision) issued an opinion. According to the plaintiffs, the opinion urged the court to recognize the fault of the French government, to recognize climate change as pure ecological damage, to award damages of one euro for moral prejudice, but to stop short of issuing an injunction because past damage cannot be repaired.

On February 3, 2021, the Administrative Court of Paris issued a decision recognizing that France's inaction has caused ecological damage from climate change and awarded the plaintiffs the requested one euro for moral prejudice caused by this inaction. The Court deferred the decision on whether to issue an injunction to order the French government to take stronger climate measures, and ordered the government to disclose steps it was taking to meet its climate targets within two months. As part of the decision, the Court held that France could be held responsible for failing to meet its own climate and carbon budget goals under EU and national law. But the Court rejected arguments that the government could be forced to meet more specific renewable energy and energy efficiency targets on the grounds that such sectoral measures cannot be independently directly linked to ecological damage. Further, the Court declined to issue compensatory damages for ecological harm, as the Court found that the plaintiffs had not shown that the government will be unable to repair the harm caused.

On October 14, 2021, the administrative court of Paris ordered the State to take immediate and concrete actions to comply with its commitments on cutting carbon emissions and repair the damages caused by its inaction by December 31, 2022. The court determined that France emitted 62 million extra tonnes of emissions from 2015-2018, though it lowered the amount to 15 million tonnes, taking into account the drop in emissions in 2020. The court thus called on France to subtract the emissions caused in excess of its legislative commitments, adding these to the reduction of emissions planned between 2021 and 2022. France has committed to a reduction in greenhouse gas emissions of 40 percent by 2030, compared to 1990 levels, and to reaching carbon neutrality by 2050. Any future slippage of emissions beyond the legislative commitments must also be compensated. The court rejected a request to have France to pay 78 million euros per semester of delay in meeting the emissions goals, and said it is up to the Prime minister and the government to come up with the measures to fix the problem.

At Issue: Whether the French government’s failure to take further action on climate change violates a statutory duty to act under domestic and international law