Four NGOs launch innovative action claiming state has not met COP21 objectives.

By Paul A. Davies and Michael D. Green

On 17 December 2018, four NGOs filed legal action against the French state. In the legal action, the NGOs argued that the state has not met the short-term climate change objectives set at COP21. The NGOs — Greenpeace France, Oxfam France, the Fondation pour la Nature et l’Homme (FNH), and Notre Affaire à Tous — simultaneously launched an online petition to involve citizens in the action, now nearing an unprecedented two million signatures to date.

In accordance with the French Administrative Justice Code, the procedure for the legal action has two prongs. First, the claimants submitted a preliminary demand (demande préalable) to the Prime Minister and to no less than 12 government members seeking damages for: (i) moral harm, (ii) moral harm suffered by their members, and (iii) ecological prejudice suffered by the environment. (For more information on ecological prejudice, see Latham & Watkins’ blog post “The Notion of ‘Ecological Prejudice’ Now in the French Civil Code”.) If the state does not respond within two months of the preliminary demand, the claimants intend to file an indemnification claim before the Administrative Tribunal of Paris in March 2019. The claimants intend to allege causation between the state’s lack of action and the acceleration of climate change.

The principal argument of the four NGOs is that the state has failed to comply with general and specific international and domestic obligations in relation to climate change. The general obligations include the state’s obligations under the French Constitution and its Environmental Charter, Article 2 and 8 of the European Convention on Human Rights, as well as a series of EU and UN obligations (e.g., obligations set out in the EU Climate and Energy Package, the UN Framework Convention on Climate Change, etc.). According to the claimants, these provisions outline a general legal obligation to pursue steps to mitigate the effects of climate change and the view of the claimants is that the state has not pursued such steps and/or that such steps are inadequate. The specific obligations relate to the 2°C objective established under the Paris Agreement, the CO2 abatement objectives contained in the EU Climate and Energy Package, and the French Low Carbon Strategy of the Energy Transition law of 17 August 2015.

As well as intending to file the indemnification claim, the four NGOs have also requested that the French state:

  • Take all necessary measures to stabilize, throughout French territory, greenhouse gas concentrations to such levels as to contain temperature rises above 1.5°C as compared with pre-industrial levels
  • Take all necessary measures to adapt French territory to the consequences of climate change
  • Cease all of the state’s direct and indirect contributions to climate change
  • Implement all measures enabling the state to meet minimum objectives laid out with respect to:
    • Reducing greenhouse gas emissions throughout French territory
    • Developing renewables
    • Improving energy efficiency
    • Adapting French territory, particularly vulnerable areas, to the consequences of climate change

The claimant’s action is innovative in France insofar as it addresses climate change. However, similar action was undertaken in France in the past in relation to other public health matters (e.g., toxic green algae in French Brittany). This action in France follows that taken by NGOs in other countries against the relevant government (notably in the Dutch case known as Urgenda). We can expect this trend to continue.

This post was prepared with the assistance of David Desforges, Avocat à la Cour (Paris).