Climate Litigation Momentum Building in Europe – Sylvie Gallage-Alwis and Gaëtan de Robillard

By Sylvie Gallage-Alwis & Gaëtan de Robillard

Partner Sylvie Gallage-Alwis and Associate Gaëtan de Robillard discuss how 2020 may be the starting point of a decade of climate justice while examining the decisions handed down in 2019/2020 both in Europe and in the United States, in Today’s GC.

Sylvie and Gaëtan’s article was published in Today’s GC’s autumn edition, and can be found here.

Will 2020 be the starting point of a decade of climate justice?  The decisions handed down in 2019 and 2020 suggest that this will be the case, both in Europe and in the United States.  France, whose failure to act for the protection of the environment has been acknowledged by European and national courts, is becoming the scene of strategic actions, both regarding the grounds referred to and the parties involved.  Such claims will be at the origin of copycat actions across the world as it is already happening in the scope of toxic tort claims.

In reaction to the so-called climate emergency, the authorities around the world have adopted an increasing number of environmental standards which can be found at international, European and domestic levels.  The guarantees provided for come in many different forms and notably include the right to pure air, the right to health and more generally, the right to life and to a family.  To enforce these rights, actions are brought before administrative, civil and also criminal courts and follow a pattern that is well known by mass litigation practitioners in the field of toxic tort.  It consists first in obtaining decisions whereby the State’s responsibility is engaged on the principle (1) and then turning to companies in order to seek for compensation (2).

Recognition of the State’s responsibility

As in the United States with the Juliana case, actions brought against States have been successful across Europe.  In that respect, a landmark decision – the Urgenda case – was handed down in 2018 by the Court of The Hague which ordered the Dutch State to reduce its greenhouse gas emissions by 25% by 2020 to enable it to make a fair contribution to the target set out by the Paris Agreement.  The Court stated that it therefore belongs to the state to take immediate measures to mitigate climate change.

Likewise, in a decision handed down by the Court of Justice of the European Union in 2019, France was condemned on the grounds of a breach of the obligations it has under the European Directive guaranteeing pure air for Europe.  In particular, the French State was found liable for automatically and repeatedly going over the limits set for nitrogen dioxide and not taking in due time the appropriate measures for reducing the exceedances to the shortest time period possible. The Court based its reasoning on an objective liability system according to which the mere observation of an exceedance of the limits establishes a breach of the said Directive.  As such, the reasons why the limit for nitrogen dioxide is exceeded, as well as the measures taken by the State to reduce its presence in surrounding air are not that important.

The Directive also imposes that plans relating to air quality adopted by Member States provides for efficient measures so that the duration of the exceedance of the legal limits is as short as possible.  According to the Court, the plan implemented by France did not meet the precision and planification requirements called for by the Directive.

This condemnation arose in a context where the State’s failure to act was acknowledged by Administrative Courts on several occasions.  After Paris, Lyon and Montreuil, the Administrative Court of Lille has now ruled in this way by a decision dated 9 January 2020.  In this case, the claimant requested the State’s condemnation to pay 80,000 Euros as compensation for alleged severe breathing problems.  To support this allegation, the claimant argued that there was a causal link between her chronic sinusitis and the atmosphere pollution in and around Lille.

By this decision, the Lille Administrative Court granted the request, considering that the insufficient improvement of the quality of the air in and around Lille establishes a fault of the State.  As the other Administrative Courts before, the Lille Administrative Court did not go down the path of compensation by stating that there was no evidence of the causal link between the claimant’s breathing problems and the peak of pollution over the period at stake.

While it is undeniable that the decision handed down by the Lille Administrative Court, as well as the ones handed down before in Paris, Lyon and Montreuil, are significant, it must not hide the fact that the State’s responsibility is admitted only minimally and that this acknowledgment does not lead to the claimants’ compensation.  However, this may well be the case in the coming months in light of the decision handed down on 10 July 2020 by the French Administrative Supreme Court, which imposed on the French State a record interim fine of €10,000,000 if it does not justify having implemented measures within six months to reduce nitrogen dioxide and particulate matter emissions below the limit values in eight zones across France.  This is exactly what happened following the acknowledgment of the responsibility of the State regarding asbestos. The same Court acknowledged the responsibility of the State in 2004. Yet, over the following fifteen years, businesses became the target of thousands of actions and of case law creating from scratch an almost automatic compensation system.

Questioning the responsibility of businesses

A causal link is one of the fundamental criteria for liability.  In the context of exposure to a chemical substance or a product, case law has shown a lot of imagination, completely attenuating this concept.  Courts are satisfied with less and less consistent evidence, temporal concomitance and, more generally, the absence of specific scientific and medical debates.

When it comes to air pollution or other important environmental pollution, considering that the number of claimants can rapidly get out of hand, one can think that the causal link will however be called into question.  This obstacle that is the causal link is all the more acute in the case of air pollution, where the “toxic substance” is diffuse by nature.  Identifying who is responsible is therefore a complex task.

Out of pragmatism, the criminal route was preferred to the civil route at first, since the search for evidence is in the hands of Criminal Judges and does not lie with the parties as in civil matters.  Thus, since 2014, several collectives have filed complaints against unknown people for endangering the lives of others in the hope that an investigation will be initiated and that analyses will be carried out on the pollutants to which they are exposed.  In contrast, in re Perenco, the claimant associations, which had obtained a civil injunction to obtain documents into the defendant oil company’s headquarters, were faced with a refusal to implement the injunction.

Despite this evidentiary difficulty, civil action is still used by individuals, as shown by the summons served on Total by a group of several cities and NGOs on the ground of the Vigilance Act of 27 March 2017.  According to this Act, corporations of a certain size (i.e. 5000+ employees for corporations whose headquarters are in France) must adopt and effectively implement a vigilance plan which contains reasonable vigilance measures to identify risks and prevent serious violations of environmental protection resulting from the company’s activities.  This is a strategic action that, if successful, could pave the way for new actions on the same basis, since it avoids any debate about a scientific and medical causal link.

Along the same line, in order to avoid any debate regarding this concept, actions relating to the concern of developing diseases in the future or seeing our planet affected are likely to appear, as in the case of litigation relating to asbestos, in the scope of which the concept of anxiety has emerged.  It is in fact not inconsequential that the term “eco-anxiety”, defining anxiety linked to climate change, has appeared in the public debate on the need to protect the environment and fight against global warming.

Other elements converge in the direction of a multiplication of disputes and grounds available to claimants, starting with the decision handed down by the French Constitutional Council on January 2020.  In this case, the Union of Plant Protection Industries was challenging the constitutionality of provisions prohibiting the production, storage and circulation in France of plant protection products containing active substances not approved by the European Union because of their effects on human health, animal health or the environment.  The claimant argued that they constituted an obstacle not only to the sale of such products in France but also to their export and therefore restricted its freedom of initiative. The Constitutional Council rejected this argument and stated that environmental protection is an objective of constitutional value which overrides the freedom of initiative.  This decision has a huge impact in France and shows the current trend of an ever increasing protection of environment.  In our view, this decision may very well constitute a basis for new environmental obligations for government and corporations.

The willingness of the authorities to implement a legislative arsenal as well as mechanisms to preserve environment is reflected by the draft Act voted on March 2020 by the French Senate, upon proposal of the French Minister for Justice. In this draft, it is proposed to set up courts dedicated only to environmental disputes.  What is even more innovative is the possibility for companies to negotiate settlements with the Public Prosecutor.  The draft Act proposes to extend the scope of the so-called “Deferred Prosecution Agreement” applicable up until now only to the offence of corruption, influence peddling and money laundering, to serious breach of environmental laws or regulations.  If adopted, such form of negotiated settlement will definitely change the way environmental disputes are dealt with.

The ever increasing number of environmental standards combined with the possibility of resolving disputes either before courts specialised in that matter or to go through a Deferred Prosecution Agreement tend to demonstrate the rapid and inevitable development of climate change litigation.

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