Background
Holding states responsible for failures to take adequate or sufficient action in order to limit the effects of climate change is an increasing litigation trend perceivable in multiple jurisdictions including the Netherlands, the United States, Germany and France. The most successful manifestation of this trend is arguably the Urgenda case, in which a Dutch Court ordered the Dutch government to cut down emissions by 25% below 1990 levels on the basis that the government has a duty of care towards its citizens which includes protecting them from the adverse impacts of climate change.
France had a similar victory in 2021 when a Paris court ruled that the French State failed to meet its obligations to reduce greenhouse gases and called upon the French state to repair the damages. Recently, a French Court dismissed a penalty of 1.1 billion euros lodged against the French state for such failings, raising questions on the efficiency of climate change litigation and what is required to hold states responsible for failings when it comes to climate change.
Obligations
The Paris Agreement adopted in 2015 is a landmark instrument which legally binds states who are party to it. The Agreement lays down a reduction of global temperatures and holds states accountable by a submission of reports known as NDC’s or nationally determined contributions. The Paris Agreement in an example of international obligations states are bound to. States are also bound by national legislation, including France notably through its Law nr. 2019-1147 on Energy and the Climate. As these are obligations a state has to fulfil, accountability is far from a certainty, and although there exists international mechanisms to monitor and track progress, enforcement of obligations remains a difficult feat. In light of this, legal action taken by NGOs as was the case in the recent french ruling, underlines that accountability of a state and government in regards to climate change can be created and enforced, but action needs to be taken.
The court’s decision to dismiss the penalty can be perceived as a failure, as it ruled that although the state was late in taking action, the action was sufficient as to not warrant a penalty. On the other hand, it can be perceived as a success as it contributes to a growing body of case law in climate change and also brings attention to a state’s obligations and accountability if it fails to meet them.
Conclusion
Climate change litigation is a growing body, which enables individuals or entities to seek out climate justice. The successes of climate litigation might appear slim when compared to the urgency of the climate crisis, but should therefore not be dismissed. There have been major and rapid progress made in the past few years, which should be encouraged. The French court ruling is a reminder that there is still progress to be made and that in the shadow of COP28, states are the primary actors in tackling the climate crisis.
By The European Institute for International Law and International Relations
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