L’Affaire du Siècle(France): will climate change litigation against States solve the climate crisis?

Updated: May 28, 2019

An increasing number of lawsuits against States for failure to address climate change are brought to national courts. The trend has reached France, where a group of NGOs brought a claim against the French State for failing to prevent and mitigate climate change, claiming to put forward ‘the Case of the Century’ (L’Affaire du Siècle). The relevance of this case has been challenged by the French Minister of the environment, despite recent experience in Europe proving the contrary and the early achievements of L’Affaire du Siècle.

In December 2018, four non-governmental organisations (NGOs) commenced legal proceedings against the French State for failing to take sufficient measures to prevent climate change. NGOs called the case ‘l’Affaire du Siècle (‘the Case of the Century’) to reflect the paramount challenge climate change represents for the twenty-first century.

Climate change is now more urgent than ever. The latest Intergovernmental Panel on Climate Change (IPCC) report states that the international community only has about twelve years (up to 2030) to limit global warming to the 1.5°C threshold which will limit some of the most catastrophic consequences of climate change. IPCC experts state this is still doable but requires action now.

Reacting to l’Affaire du Siècle, France’s current Minister of Environment and Energy transition, François de Rugy, stated that “the issue of climate change will not be solved before tribunals”. The French Minister is not wrong: addressing climate change requires ambitious nationwide (and worldwide) policies involving profound societal and economical shifts. That does not mean that litigation cannot assist in pushing for small or big steps in the right direction.

Having a look at two recent examples in Europe provides valuable insights into the impact court cases can have on national policies. Additionally, although l’Affaire du Siècle has just started, it has already had a positive impact on the place of climate change in French political debate.

Urgenda’s Klimaatzaak in the Netherlands: increasing political pressure

L’Affaire du Siècle was in great part inspired by Urgenda’s ‘Klimaatzaak’. The Klimaatzaak represents a landmark case in Europe for successfully challenging a State’s contribution to climate change and failure to prevent it. Urgenda’s claim was successful in the first instance (2015) where the judges ruled that the Dutch State had breached its international obligations and duty of care towards Dutch citizens before ordering the State to cut down emissions by 25% by 2020. The result was confirmed on appeal (2018) although on a different legal basis: the appeal judges considered that the State’s failure resulted in a violation of the right to private and family life.

Following both judgments, the Dutch government indicated that it will comply with the targets set by the Court (albeit appealing both as matter of principle based on a perceived judicial encroachment on executive power). Moreover, the urgency posed by the 2015 judgment as well as the horizon of the appeal in October 2018 have certainly had a role to play in the adoption of the draft Climate Agreement (‘klimaatakkoord’) in December 2018, after only 11 months of negotiations between the companies, NGOs and the government. The draft Climate Agreement comprises a set of 600 measures aimed at reducing the Netherlands’ GHG emissions by 49% by 2030. Measures include several subsidies and taxes, as well as the closing down of all coal plants.

There is still a long way to go for the Netherlands. The current draft Agreement is incomplete and without imminent political choices and full implementation by different actors, the 2030 target will not be met. This was the finding of two recent reports from the Netherlands Environmental Assessment Agency (PBL) and the Central Planning Bureau (CPB). Nevertheless, the Urgenda case proved that climate change litigation is effective in increasing political engagement in relation to the issue of climate change.

Plan B and the Heathrow Airport extension case: holding the government accountable

Plan B is a British charity established to support strategic legal action against climate change. This organisation has been challenging the UK government’s plan to expand Heathrow Airport in court since October 2018. Plan B considers that this project is in direct contradiction to the UK’s commitment under the Paris Agreement and reduction target – 80% reduction by 2050 as per the Climate Change Act 2008 at the time the proceedings commenced. This target has since been upgraded to reach carbon neutrality by 2050, as the UK became the first State to declare a state of ‘environmental and climate emergency’ on 1 May 2019.

Ironically, on the same day that the UK parliament declared a state of environmental and climate emergency, the court rejected Plan B’s claim. Plan B did not give up and wrote to the Department of Transport (DoT) calling upon a review of the airport expansion project – particularly in light of the newly declared state of climate emergency. With this request and continued judicial pressure in the form of an appeal, Plan B succeeded in making the government ‘carefully consider’ reviewing the airport expansion project. This shows that even failed legal action can be used to hold government accountable when there are blatant discrepancies between their political declarations and actual actions.

L’Affaire du Siècle : Early achievements

Although l’Affaire du Siècle has not yet succeeded or failed such as the above-mentioned cases, it has already had a positive impact on the political scene in France.

The greatest merits of l’Affaire du Siècle so far have been the media attention and citizen mobilisation generated by the claimants. The petition for L’Affaire du Siècle gathered over 2 million signatures in one month, of which one million were collected after only three days, becoming France’s most widely signed petition. The claimants also organised the ‘March of the Century’ (‘la Marche du Siècle’) which gathered 350,000 people across the country on 16 March 2019. To put this in perspective with another large movement in France, the now infamous ‘gilet jaunes’ movement gathered 287,000 people for its ‘first act’ (i.e. the first demonstration organised). This number alone relativizes the statement made by Minister de Rugy on the alleged non-readiness of French people to address the climate crisis who would rather protest the carbon tax (referring to the spark of the ‘gilet jaunes’ movement).

This unprecedented mobilisation of civil society is in itself a success on at least three fronts: it has contributed to raising awareness within the French population, it has created additional pressure on the French government to work on its climate change policies as a matter of priority, and it has pushed the environment and climate change higher up on the political agenda – as evidenced by the nature of the debates held in the context of the European elections campaigns, and the unusual high score of the Green Party in France at these elections (13,1% - third place).

Even if the l’Affaire du Siècle does not succeed, it will have helped in taking a good few steps forward. If it succeeds, the French State will be bound to implement measures to reach its targets, cease France’s contribution to climate change and adapt to climate change. The judges will not prescribe a roadmap to transition France to a carbon neutral economy going forward. Therefore, the case will indeed not ‘solve the issue’ per se. Yet, the judgment will likely contribute to the design and implementation of effective policies, like it has in the Netherlands.

The same logic has applied and continues to apply in each case involving climate change litigation: whether it succeeds or not, it is a step forward in the right direction. So of course, the issue of climate change may not be solved before tribunals, but its contribution is a crucial one and should not be underestimated.

Elodie Théobald