The planet before the judges

In France, theaffair of the centuryin which a group ofNGO notably criticized the French administration for not doing enough to combat climate change, has brought climate trials to the forefront of media news. After two years of investigation, the Paris administrative court found the French state guilty in February 2021 of “culpable deficiencies (…) in the fight against global warming”. While this judgment is undoubtedly historic, it is neither the only nor the first climate-related litigation. Indeed, recent years have seen a remarkable growth in climate legal actions. There are now hundreds of them around the world, from Pakistan to the Netherlands, from the United States to Australia.

It is this phenomenon of climate judicialization and judicial activism that Marta Torre-Schaub studies in this short collection Climate Justice: Trials and actions. The author is a research director at the Institute of Legal and Philosophical Sciences at the Sorbonne (ISJPS) and director and founder of the Law and Climate Change Network, and she has already published several works on the subject of climate justice, jurisprudence and climate change.

According to Marta Torre-Schaub, mobilizing the law allows civil society and the climate justice movement to go beyond the UN climate negotiations and raise awareness of the issue among a wider audience. But what are climate lawsuits? In the absence of a precise definition, the book describes them as any dispute that raises “a question of fact or law concerning the substance or politics of the causes and impacts of climate change” (p. 16). This definition includes rather symbolic disputes such as theaffair of the century which aim above all to publicize and put pressure on decision-makers, as well as actions which seek to obtain concrete results, such as the cancellation of activities harmful to the climate (such as mining or a development project). airport). Finally, criminal actions can also fall into the category of climate trials, as in the case of the “dropouts” of the portraits of Emmanuel Macron (we will come back to this).

The book briefly presents several of these disputes, thus demonstrating the great diversity of climate trials, in terms of objectives, geographical scope, rights invoked or accused persons concerned. In order to account for this diversity, the author proposes a typology of climate trials, but without applying it systematically. She distinguishes in particular actions against public actors and actions against private actors; actions based on human rights and fundamental rights and actions based on the rights of Nature; and finally trials based on substantive law and trials under criminal law.

Actions against the State: the case Urgenda

The discussion begins with the case Urgendabecause of its impact on the climate justice movement in 2013. In that case, theNGO Urgendasupported by 900 plaintiffs, sued the Dutch government for allegedly failing to implement adequate greenhouse gas reduction policies, thereby exposing the population to the risks and dangers of climate change. Two decisions were issued, in 2015 and 2018, and were both challenged by the government. In December 2019, the Dutch Supreme Court found the government liable for its inaction, and ordered it to reduce the country’s greenhouse gas emissions by at least 25% compared to 1990 emissions. The parallels with theDeal of the century are obvious, the matter Urgent being considered “a model for climate justice” (p. 17) having inspired others NGO and campaigns.

While the plaintiffs in the case Urgent are partly based on fundamental rights and human rights, other legal decisions are based on the rights of Nature. This is particularly the case in Latin America, where the Atrato River has been given “legal personality” since 2016. Subsequently, in 2018, a decision also recognized the Colombian Amazon as a “subject of rights”.

Actions against companies: Lliuya versus RWE

In addition to the State and public authorities, climate disputes particularly involve private companies, and in particular large oil companies such as Exxon Mobil, Royal Dutch Shell, or Total. While the actions taken against Total are probably better known in France, at the international level, it is above all the complaint against the German electricity company RWE which has received the most attention although the author devotes very little development to it. In this case, a Peruvian farmer, Mr. Lliuya, supported by a NGO German, Germanwatch, asked RWE to repair the damage caused by climate change in his village in the Andes, on the grounds that RWE contributed to it through its considerable greenhouse gas emissions. Initially, the court had considered the complaint inadmissible, given the impossibility of attributing the effects of climate change to a specific emitter. Indeed, the whole difficulty in climate litigation is to establish a causal link. However, this is fundamental to successfully conducting climate trials, and explains why so few climate court actions have so far been successful. It should be noted, however, that judges seem increasingly inclined to render justice despite the technical and scientific difficulties. In the case RWE, the court changed its mind and finally deemed the complaint admissible in 2017. If the book does not return to the causes of this change of heart, it seems likely that the multiplication of this type of legal decisions has something to do with it, marking a trend towards the admissibility of this type of complaint. Moreover, some judges seem more and more receptive to the climate cause. The author cites in particular an Australian judge who considers that the Court has a duty “to react and do something in the face of the government’s inaction and apathy” (p. 20).

Actions based on criminal law: “Let’s get rid of Macron”

Finally, this government inaction and apathy sometimes also incites illegal actions. This is particularly the case of the current “Let’s take down Macron” campaign. As part of this civil disobedience campaign, environmental activists took down more than 130 portraits of the President of the Republic in town halls all over France. The dropouts, for their part, exhibited several of these portraits in Bayonne in 2019 to publicize not only their cause, but also the prosecutions initiated against the activists. The Lyon criminal court, however, acquitted the activists in a 2019 decision.

Despite the great diversity of contexts, we see the importance of media coverage and the political debates surrounding legal debates. This is one of the key elements of climate trials; the majority of disputes seek above all to publicize, raise awareness and mobilize. Torre-Schaub therefore concludes that these trials are “an extraordinary lever for action and can lead our societies towards better climate governance and a real transition” (p. 12).

As shown in theDeal of the centurythe climate cause is now also being debated before judges, and it is therefore appropriate to familiarize/raise awareness among the general public on this subject. Marta Torre-Schaub’s little book therefore presents a very interesting introduction to the issue in 77 pages. The book is accessible and shows not only the great diversity of climate justice actions but also the common origin of the climate justice movement, and the links between the various disputes. But it must be noted that conciseness sometimes outweighs precision too much. On several occasions, we would have liked more details, or at least references and sources, which are too rare. We also sometimes note imprecisions and inconsistencies. For example, the author deplores the “moderate, even minimalist, interest of diplomats” in the special report of the IPCC of 2018 (p. 29) at the Katowice Climate Conference, when in this case it was Saudi Arabia that had blocked consideration of the report, and not all diplomats as suggested. A list summarizing all the disputes that are mentioned in the book, with additional sources and their current status would also have enriched the story.

Climate lawsuits will multiply, in France and elsewhere. The verdict in the Case of the Century will certainly push other initiatives to file complaints against emitters and regulators. The field of climate law remains dynamic. Climate Justice: Trials and actions offers a very good starting point for anyone who wants to familiarize themselves with this field and better understand the issues of climate justice and the law relating to it.