How climate litigation do they enhance climate change mitigation ? The last part of 6th IPCC report, published on April 4, 2022, highlights the importance of litigation in the reconfiguration of global climate governance.
Climate disputes are disputes having the issue of climate change as the central subject of the application presented to the courts. This type of litigation has multiplied all over the world since 2015, after a emblematic decision rendered by the Court of First Instance of The Hague (Urgenda decision). In this case, the NGO Urgenda had won its case with the judges for the Dutch State to accelerate its CO reduction policies.2.
The latest IPCC report notes the development of this type of legal action and the place they now occupy in the fight against climate change. This recognition by the international panel of scientists is innovative, since it is the first time that it is interested in the social and legal dynamics underlying these disputes.
The report pays particular attention to various judicial mobilizations led by civil society against States and private actors aimed at mitigating climate change. It highlights the various actions of the law that make it possible to make the link between national and international climate policies.
An innovative and bold report
The contribution of group III to 6e IPCC report surveys the literature on the scientific, technological, environmental, economic and social aspects of climate change mitigation.
With a length of 2 pages, the report is based on scientific publications published between 913 and 2018. It was written by eighty-five authors from a wide variety of countries around the world.
The level of confidence of each statement made is expressed using five qualifiers, ranging from very low to very high. Regarding the way in which climate litigation promotes climate governance, the level of confidence expressed appears relatively high, ranging from average to very high.
The text mentions four major facts. The first observation refers to the evolving international landscape in which action to mitigate climate change takes place. The second is marked by the observation of a large number of actors. The third explains the links between mitigation, adaptation and development. Finally, the last describes the social aspects.
The rise of climate disputes appears as a cross-cutting theme common to these axes.
Highlighting the functions of climate litigation
The report addresses the issue of litigation by describing it as a mode of “pressure” by civil society on States and companies. Climate disputes are thus analyzed in relation to two questions: climate policies and the improvement of climate governance by the actors.
The report is audacious: in reality, few disputes have led to tangible results. Thus, of nearly 1500 climate claims having been brought to justice worldwide since the early 2000s, less than a hundred have given rise to decisions in favor of the plaintiffs.
That said, the IPCC report clearly shows that it is above all a question with a progressive dynamic with some potential. It is therefore not so much about the results obtained, but about the ability of these disputes to put pressure on the decision-makers.
The report also discusses the “structuring” effect of litigation on climate governance. Disputes are thus presented from the perspective of cooperation between actors, presenting an analysis of the phenomenon in its strategic aspect.
These points clearly describe the different possibilities offered by climate litigation.
How climate disputes drive public policies
Le Summary for Policymakers of Group III of the 6th IPCC Report is categorical:
“Climate governance works through laws, strategies and institutions, grounded in different national circumstances, enhances climate change mitigation by providing frameworks that engage diverse actors…Climate governance is most effective when it integrates different cross-cutting policies , in different fields. »
This has been the case in various climate queries.
Thus, the one interposed in Norway by Greenpeace in 2017 had the main purpose of changing the climate and energy policies of this country. to prevent oil drilling from continuing. If it did not give rise to a decision in favor of the applicants, it allowed an appeal to the European Court of Human Rights to be filed recently. The case is now pending.
In turn, the aim of the London Heathrow airport climate case was to stop the airport expansion project. The applicant NGO highlighted the fact that this project was clearly contrary to the objectives set out in the Paris Agreement. Therefore, the National Climate Change Mitigation Plan had to be brought into line with the Agreement. Here again, the decision on appeal was not favorable to the plaintiffs, but the reasoning of the judges at first instance clearly underlined the need to take into account the Paris Agreement for any project that could have a negative effect on the climate.
In France, the Grande-Synthe case judged by the Council of State in 2019 and 2021 was intended to reproach the administration the inadequacy of its climate policies with the objectives of the climate policies of reducing greenhouse gas emissions of the European Union and the objective of carbon neutrality, as well as the objective of the Paris Agreement. The Council of State has twice estimated that the COXNUMX reduction targets2 constituted genuine “legal obligations” for France.
This case is clearly in line with the latest IPCC report, as an example of the virtuous effects of climate litigation on the readjustment of national climate policies.
Restructured climate governance
The report also highlights how climate disputes can restructure climate governance.
An example of this point is the already cited Urgenda case in the Netherlands, which gave rise to three decisions in 2015, 2018 and 2019. These three judgments recognize that the State has a “duty of care” to its citizens, making it responsible for directing climate policies.
In France, the Case of the Century, judged twice in 2021, also recognizes a partial responsibility of the State in climate matters, in attesting to an ecological damage created in the atmosphere.
Again in the Netherlands, a decision was rendered in May 2021 against Shell to remind the company of its "climate vigilance duty".
This can also be seen in an application lodged with the Court of Justice of the European Union, in which a coalition of NGOs united to take climate action. This request did not succeed and seems to have been shelved, but the fact remains that it may allow other legal actions to gradually make their way before the European judges.
Other petitions filed at the European Court of Human Rights also testify to this finding.
If all the decisions rendered by judges do not contain sanctions against administrations or companies for their delay in the implementation of ambitious climate policies, this type of judicial approach has indeed opened a way in the fight against climate change. climate change.
Noted by the authors of the report, these requests and decisions recompose the landscape of climate governance. It was important that a panel of international experts take up the subject and realize that this rising phenomenon has a positive effect on efforts to mitigate climate change.
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.