Climate Litigation Momentum Building in Europe

By Sylvie Gallage-Alwis and Gaëtan de Robillard

While 2020 will go down in history as “the year of pandemic,” decisions handed down in 2019 and the news at the beginning of the year, before the Coronavirus superseded everything else, indicate plenty of pent-up energy behind climate litigation in Europe. France, whose failure to act for the protection of the environment has been acknowledged by European and national courts, is becoming the scene of strategic actions against flimsy regulation and the parties that profit by it. Such claims will be at the origin of copycat actions. It is already happening in the form of toxic tort claims. Authorities have adopted an increasing number of environmental standards at international, European and domestic levels of governance. Notably, they refer to the right to pure air, health and, more generally, the right to life and family. To enforce these rights, actions are being brought before administrative, civil and criminal courts — a pattern familiar to practitioners in the field of toxic tort. It consists first in obtaining decisions in which the state’s responsibility is engaged on principle, and then turning to companies for compensation. A landmark decision, the Urgenda case, was handed down in 2018 by The Hague Court of Appeals, which ordered the Dutch State to reduce its greenhouse gas emissions by 25 percent by 2020 to enable it to make a fair contribution to the Paris Agreement target. The court stated that it therefore belongs to the state to take immediate measures to mitigate climate change. Likewise, in a decision handed down by the European Court of Justice in 2019, France was condemned on the grounds of a breach of obligations it has under the European Union directive guaranteeing pure air for Europe. In particular, the French State was found liable for automatically and repeatedly going over the limits set for nitrogen dioxide, and not taking appropriate measures for reducing the excesses in the shortest time possible. The court based its reasoning on an objective liability system, according to which the mere observation of an exceeded limit establishes a breach of the directive. The directive also requires plans relating to air quality adopted by the European Union member states to provide efficient measures so that the amount of time the legal limits are exceeded is as short as possible. According to the court, the plan implemented by France did not meet the requirements called for by the directive. This condemnation arose in a context in which the French State’s failure to act was acknowledged by administrative courts on several occasions, including a January 2020 decision by the Administrative Court of Lille. In this case, the claimant requested 80,000 euros as compensation for alleged severe breathing problems. To support this allegation, the claimant argued that there was a causal link between her chronic sinusitis and the atmosphere pollution in and around Lille. The administrative court granted the request, noting that insufficient improvement of air quality in and around Lille is the fault of the state. As with the other administrative courts before, Lille did not grant compensation, citing lack of evidence of a causal link between the claimant’s breathing problems and peak pollution over the period in question. Although it is undeniable that the decision by the Administrative Court of Lille — as well as decisions handed down in Paris, Lyon and Montreuilare — are significant, the fact remains that the state’s responsibility is admitted only minimally, and this admission does not lead to compensation. That is exactly what happened following the acknowledgment of the responsibility of the state regarding asbestos. The French Council of State acknowledged responsibility in 2004. Yet, over the following 15 years, businesses became the target of thousands of actions and of case law, creating from scratch an almost automatic compensation system.

Questioning Corporate Responsibility

A causal link is one of the fundamental criteria for liability. With respect to exposure to a chemical substance or a product, case law has attenuated this concept. Courts are satisfied with less and less consistent evidence, temporal concomitance and, more generally, the absence of specific scientific and medical debates. When it comes to air pollution or other important environmental pollution, considering that the number of claimants can grow exponentially, one can conclude that the causal link will always be called into question. This obstacle is more acute in the case of air pollution, where the “toxic substance” is diffuse by nature. Identifying who is responsible is therefore a complex task. Out of pragmatism, the criminal route was preferred to the civil route at first, as the search for evidence is in the hands of judges and does not lie with the parties as in civil matters. Thus, since 2014, several complaints have been filed against unknown people for endangering the lives of others in the hope that an investigation would be initiated and analyses carried out on the pollutants to which they are exposed. In contrast, in re Perenco, the claimant associations — which had obtained a civil injunction to obtain documents into the defendant oil company’s headquarters — were faced with a refusal to implement the injunction. Despite this kind of evidentiary difficulty, civil action is still used by individuals, as shown by the summons by a group of several cities and non-governmental organizations (NGOs) on grounds of the Vigilance Act of 2017. According to this act, corporations of a certain size must adopt and effectively implement a plan that contains reasonable vigilance measures to identify risks and prevent serious violations of environmental protection. If successful, this could pave the way for many actions, as it avoids debate about a causal link.

More Grounds For Plaintiffs

Other elements converge, pointing to a multiplication of disputes and grounds available to claimants, starting with a decision handed down by the French Constitutional Council in January 2020. In this case, the Union of Plant Protection Industries was challenging the constitutionality of provisions prohibiting the production, storage and circulation in France of plant protection products containing active substances not approved by the European Union because of their effects on human health, animal health or the environment. The claimant argued that the provisions constituted an obstacle not only to the sale of such products in France but also to their export, and therefore restricted freedom of initiative. The Constitutional Council rejected this argument, stating that environmental protection is an objective of constitutional value, which overrides the freedom of initiative. This decision has had a huge impact in France and illustrates the trend toward increasing protection of the environment. In our view, this decision may very well constitute a basis for new environmental obligations for government and corporations. The willingness of the authorities to implement a legislative arsenal, as well as mechanisms to preserve the environment, is reflected by the draft act voted on in March 2020 by the French Senate, upon proposal of the Minister of Justice. In this draft, it is proposed to set up courts dedicated only to environmental disputes. Even more innovative is the possibility for companies to negotiate settlements with the public prosecutor. The draft act proposes to extend the scope of deferred prosecution agreements known as Judicial Public Interest Agreements, or CJIPs — applicable until now only to the offence of corruption, influence peddling and money laundering — to serious breach of environmental laws or regulations. If adopted, it will certainly change the way environmental disputes are dealt with. The ever-increasing number of environmental standards, combined with the possibility of resolving disputes either before special courts or through a deferred prosecution agreement, demonstrate the rapid and inevitable development of climate change litigation.

Sylvie Gallage-Alwis is a Partner at Signature Litigation, specializing in mass, toxic tort and product liability litigation. She heads the product liability & product compliance litigation practice, which encompasses litigation arising from pollution and environment related issues linked to products. sylvie.gallage-alwis@signaturelitigation.com