France: Climate Ruling Prepares the Way for Decision on Government Climate Measures

In November 2020, the Conseil d’État (the French Supreme court for administrative cases) issued a preliminary ruling on a case brought to its attention calling for a decision regarding the nature of the central government’s responsibility with regard to climate measures. This is the Conseil’s first ruling on climate measures, and as such has been widely discussed. Only a preliminary ruling regarding the presentation of evidence, this first ruling has been widely touted as an indication of a step forward in climate action. Although the Conseil’s decision will address only the domestic obligations of the French government, it is receiving advance attention as a decision that may have broad international impact.

This French case is in some ways similar to the situation that led to the 2015 Urgenda decision, 1 which has been widely applauded by climate activists as a major step forward for climate action. In Urgenda, (a case filed by a Dutch non-governmental organisation seeking to require the government to adopt stricter measures), the court found that the Dutch government had an obligation to reduce the country’s carbon emission levels by 25– 40 percent (acknowledged by the Intergovernmental Panel on Climate Change (IPCC) to be the range of reductions needed to achieve safe levels of emissions), and that this commitment (as interpreted in the context of the European Convention on Human Rights (ECHR) as well as the UN Framework Convention on Climate Change (UNFCCC), to both of which the Netherlands is Party), could only be met by the adoption of measures that would result in at least a 25 percent reduction by 2020. While all parties acknowledged the longer-term goals of a 49 percent reduction by 2030, and a 95 percent reduction by 2050, the Urgenda plaintiffs complained that the government had stated that measures adopted toward achievement of short-term goals would achieve, at most, a 20 percent reduction. In its decision in favour of the plaintiffs, the Dutch appeals court held that the government’s obligation in respect to any acknowledged danger to its people is to take appropriate preventive measures. Finding that climate change presents such a danger, the court stated that the State was obliged to adopt measures aimed at preventing such a danger – that is, measures that would achieve at least a 25 percent reduction. It rejected arguments that the particular measures to be adopted, and the timetable for achieving the longer-term goals, were matters of policy, to be decided by the executives of the government.

The underlying facts of the current French case are as follows. The case arose in 2018, in a claim submitted by the northern French city of Grande-Synthe, after having received a negative response to its request that the French Government take additional carbon-emission-reduction measures, in order to meet the objectives of the Paris Agreement (adopted in 2016 under the UNFCCC). In the November 2020 ruling, the Conseil specifically noted the following, suggesting that it will consider these points to be relevant to its final decision:

On 15 December 1993, European Decision 94/69/EC approved the UNFCCC on behalf of the European Community (which later became the European Union). More relevant, the European Union adopted its first “Energy Climate 2020 Package” (Decision No. 406/2009/EC of 23 April 2009) regarding the effort to be made by Member States to reduce their greenhouse gas emissions in order to meet the Community’s commitments to reduce these emissions by 2020, with the specific objective a 20% reduction (compared to 1990) in greenhouse gas emissions. Under Annex II of that decision, a limit was set for France – a reduction of 14% of greenhouse gas emissions compared to 2005 emission levels, by 2020. Subsequently, the EU has acceded to the Paris Agreement and informed the Conference of the States Parties to the UNFCCC, under Article 4 of this agreement, that its “nationally determined contribution” (NDC) for the EU and its Member States corresponds to a minimum reduction of 40% of greenhouse gas emissions in 2030 compared to their 1990 level. It then adopted a second “Energy Climate Package” based specifically on this NDC (Regulation (EU) 2018/842 of 30 May 2018) relating to the Member States’ commitment to annual reductions in greenhouse gas emissions from 2021– 2030 in order to meet the commitments made under the Paris Agreement, Article 1 of which ‘[e]stablishes Member States’ obligations relating to their minimum contributions for the period 2021– 2030, with a view to achieving the Unions’ objective of reducing, by 2030, its greenhouse gas emissions of 30% compared to 2005 levels in the sectors covered by Article 2 of this Regulation, and contributes to the achievement of the objectives of the Paris Agreement’. Annex I of the regulation (pursuant to Article 4) sets the level of this minimum contribution for each Member State and has assigned France the obligation of a 37% reduction (compared to its 2005 level) by 2030. 2

It also noted the specific content of the French Energy Code (2019), which set particular national policy objectives “in response to the ecological and climate emergency”, including cutting greenhouse gas (GHG) emissions by 40 percent, as compared with 1990 levels, and (towards achievement of “carbon neutrality”) reducing GHGs to one sixth of 1990 levels by 2050, taking carbon sinks (measures to remove carbon from the atmosphere) as well as emissions into the accounting. It went on to discuss in some detail the specific “carbon budgets” required under the Energy Code, noting that the government has reported that the country exceeded its budgeted emission levels in 2015– 2018, and that it had modified the national carbon strategy in announcing the second carbon budget in 2020, lowering expectations and delaying some elements until 2023. It also noted that the EU is considering calling for even greater reduction levels (55 percent as compared with 1990), in response to recent IPCC reports.

Beyond these general statements, which are widely reported as potential indicators that the Conseil will find in favour of the claimants, the ruling notes only that it does not have sufficient details before it in the claim or the government’s response to make the requested determinations. The actual ruling announces rejection of some of Grande-Synthe’s petitions (for example, requests based on allegations, that statements made by government constituted “implicit refusals” to take the requested measures, calls for annulment of those refusals); however, it allowed a number of other parties to join with Grande-Synthe in the suit (the cities of Paris and Grenoble, as well as Oxfam France, Greenpeace France and other organisations). 3

Most directly relevant, it noted the need for additional information (to be submitted by February) regarding other points in Grande-Synthe’s complaint, particularly the justifications of the government’s choice of measures in terms of the adopted policies and budgets. This part of the ruling has been cited by climate activists as an indication that the Conseil intends to hear evidence on the compliance issue, and is thought by some to indicate that it will rule in favour of the claimants.