Grande-Synthe case: should we worry about the future of climate justice in France?
As a reminder, after filing a gracious appeal in November 2018 – which remained unanswered – with the government to ask France to intensify its fight against climate change, Damien Carême, the mayor of Grande-Synthe, commune of Hauts-de-France -France particularly exposed to the risks of marine submersion and flooding, had decided in 2019 to seize the Council of State. An initiative supported by the city of Paris and the four NGO stakeholders of deal of the century.
This complaint to the high court was aimed at the "climate inaction" of French leaders. The Grande-Synthe I and II decisions, rendered respectively in November 2020 et July 2021, aroused enthusiasm.
A new decision
Ce May 10, 2023, a third decision fell. The High Court once again urges the government to take all useful additional measures to ensure that the rate of reduction in greenhouse gas emissions is consistent with the trajectory for the reduction of these emissions adopted by the decree of April 21, 2020. And this with a view to achieving the reduction objectives set by the energy code and by the regulation (EU) of 30 May 2018 before June 30, 2024.
The government must also produce, by December 31, 2023 and then June 30, 2024 at the latest, all the elements justifying the adoption of these measures and allowing the assessment of their impact on these targets for reducing greenhouse gas emissions. greenhouse effect.
This decision notes the non-execution of the previous one, returned on July 1, 2021.
Devoid of a penalty, this new injunction of May 10 may be disappointing, since the government will not be challenged for its delay.
Insufficient decision
If we place this decision in a double context, international and national, the relative effect that this dispute has for the moment on the climate policies of the government can surprise.
At the international level, the multiplication of the number of climate disputes and the synthesis of the 6e report of the IPCC which underlines the important role of these legal actions on global climate governance, invites to consider this type of trial as accelerators of public climate policies. If the phenomenon was perceived in France as a judicial revolution, Grande-Synthe's latest decision casts a chill over these prospects.
The climate issue is a global emergency while raising divisions and tensions within society and government itself. The Council of State therefore had a new opportunity here to stand out and show itself to be the guardian of the activity or inactivity of the administration in terms of climate policies. This is what it had done in the Grande-Synthe I and II decisions.
Judges in a hurry
This time, on the contrary, he preferred to be benevolent with the government and not impose any sanctions on it.
Even though the Council of State has emphasized on several occasions that its duty consists in examining the obligation of the government to honor an injunction, this task seems incomplete. The decision of May 10, 2023 indeed highlights that the government did not do what it was ordered to do, justifying this failure by reasons based on uncertain assumptions.
But the decision does not explain why the Council of State prefers to limit itself. If the judges seem to have integrated that the Grande-Synthe affair concerns the future and the ability of France to respect its schedule for reducing emissions, they do not seem to be in a hurry to want to speed up the pace of the government.
In view of this context, three elements seem particularly interesting to us.
A statement of non-performance
Firstly, the Council of State draws up the observation of a non-execution of the Grande Synthe-II decision of 1er July 2021 which targeted the 2030 emissions reduction target. of GHG compatible with the achievement of the objectives set for the 2030 deadline.
At the end of the analysis, the Council considers that if credible and substantiated elements make it possible to regard the trajectory of achievement of these objectives as respected, it could close the dispute. In view of these elements, the Council considers "that there are persistent major risks of not achieving the objectives set for 2030".
If “the emission reduction targets set for the years 2020, 2021 and 2022… have been or could be achieved” (HCC Annual Report 2021, pp140-150), these results must be placed in the context of the relaxation of the goals assigned to the second carbon budget as well as the very significant drop in emissions observed in 2020.
It thus concludes "that it is necessary, as it stands, to supplement the injunction... by enacting... the additional measures necessary to ensure its total execution, without there being any need to pronounce a penalty payment" .
No penalty at this stage...
Second point of the decision, despite the finding of non-performance and even though a new injunction to do will be ordered for the second time by the high court, the judges however refuse to demand a penalty payment. Two reasons explain this.
One relates to litigation itself and to the concept of the enforcement judge embodied by the Council of State. Its approach must indeed take into account the behavior of the administration, by seeking the best way to achieve full execution. For them, a penalty payment is an acknowledgment of the failure of the effectiveness of judicial decisions, in no way a palliative for their necessary execution. The judges will stick to a new injunction without going so far as to order a penalty.
The other explanation is rooted in the very nature of the climate standards that must be applied and respected. The decision states that "…these elements must be seen as demonstrating the government's desire to achieve the emission reduction targets set as they stand for 2030 and to carry out, in doing so, the decision of 1er July 2021…".
Unlike litigation on air pollution, the judges will prefer to trust the government and observe in its actions a "willingness" to achieve the objectives, rather than seeing it as procrastination or a lack of (good) management of climate policies.
A climate justice that skates?
Finally, the decision of last May raises the question: given the absence of a penalty payment, does the government really feel under pressure, as the first climate disputes ? Because this episode is anchored in a series of climate disputes which have so far given the feeling that climate justice could really contribute to accelerating the rate of reduction of GHG emissions.
The first decisions of Grande-Synthe indeed gave hope by recording the acceptance by the high court of the request from the municipality of Grande-Synthe and the requesting parties. They had also had the normative force of the documents attached to climate programming (the national low-carbon strategy) recognized.
The business of the century I and II, for their part, had obtained the recognition of a climatic damage due to an alteration of the atmosphere due to GHG emissions. The administrative court of Paris had held the responsibility of the State for pure ecological damage, caused by the inaction of the State in its fight against climate change for the period 2015-2018, which was thus considered responsible for poor management of climate policies.
Rather than continue to trace this encouraging furrow, the Grande-Synthe III decision goes back in a certain way, or at least seems to put a brake on the ambitions of climate justice.
Marta Torre Schaub, CNRS Research Director, lawyer, specialist in climate change and environmental and health law, Paris 1 Panthéon-Sorbonne University
This article is republished from The Conversation under Creative Commons license. Read theoriginal article.
