“We are not going to reduce greenhouse gas emissions in a court of law.” This was the reaction of François de Rugy, French Minister for the Ecological and Solidarity Transition, on December 2018, as reported by the Parisien, in response to the lawsuit that had just been filed against the French government by the NGO Notre Affaire à Tous for its failure to take appropriate action to fight climate change. Two years on, the message has somewhat changed. On November 22, 2020, Barbara Pompili, François de Rugy’s successor (after Elisabeth Borne), announced that ecocide would be classified as a criminal offense, explaining on France TV Info that “the sword of justice will be brought to bear on environmental bandits.” This development highlights the increasing use of litigation to address climate change and, more widely, environmental issues.
“Using courtrooms as a place for strategic litigation is a time-honored practice,” said Antoine Bernard, consultant in international litigation strategy. “Ruth Bader Ginsburg, the recently deceased supreme court justice, made women’s rights her specialist field.” The criminal justice system in the United States lends itself particularly well to this approach, being known for “a stronger tendency to resort to litigation in social relations,” said Judith Rochfeld, professor of private law at the University of Paris 1 Pantheon-Sorbonne.
Global issues, national jurisdictions
In her book Justice pour le climat, Judith Rochfeld explains how legal activism to address environmental issues intensified at the turn of the century, when the Senate, with a Republican majority, refused to ratify the Kyoto Protocol, which became a global phenomenon in 2015. In Europe, a landmark verdict was issued in the Urgenda case, named after the foundation which successfully forced the Netherlands, after a ruling by the Dutch Supreme Court on December 20, 2019, to comply with national greenhouse gas reduction targets.
Lawyer Marta Torre Schaub, author of Justice climatique. Procès et actions, considers this a result of the disconnect between the need for urgency to fight the climate crisis and the political impasses involved in international governance: “Ratified by many countries in 2016, the Paris Agreement has proved that the forecasts put forward by scientists were far too cautious. That is one of the reasons why NGOs have resorted to other methods.”
According to Judith Rochfeld, this strategic shift has come about due to the growing scale of the problem: “It has been about re-territorializing the risks involved, and demanding protection at a national level.” This is exactly what happened in the Urgenda case: the court rejected the argument that the Dutch government was not able to reduce greenhouse gas emissions alone, and ruled that it should do its part and implement an effective national policy.
Environmental law: from politics to the courtroom, a delicate balancing act
When explaining its ruling, the Dutch court thus cited the issue of jurisdiction. The judges considered it their duty to deliver justice to Dutch citizens in their demand for protection, since the government was failing in its responsibility due to the inadequacy of its climate policy.
In France, the decision handed down by the Council of State on November 19 2020, as part of the legal action filed by the commune of Grande-Synthe against the government’s “climate inaction”, focused on holding political authorities to account for the measures taken to achieve the country’s climate goals: “It’s interesting that the Council of State did not justify its decision by referring to the Paris Agreement or the 1992 United Nations Framework Convention on Climate Change,” said Judith Rochfeld. “Instead, the judgment was based on European and French legislation, such as the 2019 Energy and Climate Act, which are the French Law version of these international agreements.”
Nonetheless, the increasing litigation around this issue raises questions about the separation of powers. Should we as citizens be concerned about the creation of a so-called “government of judges”? “That is the danger with this type of case,” said Marta Torre Schaub. “It requires judges to rule on issues that politicians and legislators have not resolved in a satisfactory manner or in a way that is commensurate with the risks and urgency of the situation. However, they are not being asked to establish new legislation, only to interpret and apply existing laws!” This is no easy task, according to Judith Rochfeld: “The extent to which current legislation is binding is a matter that’s up for debate. It’s at this point that a certain judicial courage comes into play.”
“The value of climate change trials,” she adds, “is that they provide an outlet to debate legal developments, and make new arguments heard.” Antoine Bernard, who believes that such victories are not just about winning in court, agrees: “A lengthy trial provides an opportunity to “raise” certain issues with decision-making bodies and to encourage reflection in the media and among specialists over the long term.” Thus, the judge’s ruling is not the sole endgame of these trials.
Ecocides: justice everywhere, but no enforcement?
When it comes to legal activism, a distinction should be made between different modes of action. The creation of new laws, as with the criminalization of ecocide, does not involve the same process as pursuing litigation based on established legal frameworks, such as the European Convention on Human Rights in the Urgenda case.
For an association like Notre Affaire à Tous, however, these two approaches are simply part of the same continuum: an “environmental law that is truly dissuasive and repressive when necessary”, as the only way to bring about “real change in current practice”, is one of its aims. In the view of Marie Toussaint, ecocide is thus a “major form of leverage”, as a way of making stakeholders accountable before they act: “It would be one method of refusing approval for certain projects. Just imagine the CEO of Total having to go back to his shareholders and explain that: ‘If we open more fossil fuel wells, we’re at risk of committing ecocide, so what you’re asking for is illegal.”
However, lawyer Arnaud Gossement does not share this viewpoint, (see our first episode “Ecocide, Origin of an Environmental Struggle). “We have the tools to act, but currently in France, 96% of the environmental offenses reported do not result in any legal sanctions. You can pass as much legislation as you like, but without the backing of the police or the justice system, you won’t get anywhere.” Gossement also points out that this year, 1,000 jobs have been cut within the French Ministry for the Ecological Transition.
This same lawyer also believes that the real-life consequences of these sometimes-high-profile climate trials should be put into perspective: “We are asking judges to establish new legislation, and not just to apply it. Yet, if we take the Urgenda case as an example: the trial lasted five years. The court issued its decision in 2019, and a greenhouse gas reduction target was set for … 2020. It’s not possible to change public policy in such a short period of time. The legal process is too slow to meet the urgency of the climate crisis.”
Judith Rochfield is less skeptical: “The situation requires urgent action. However, these lawsuits are a means of raising public awareness, and encourage government leaders to consider realigning economic interests with the common good of society.”
In France, the Council of State ruling on the Grande-Synthe case, as well as the French government’s decision to criminalize ecocide, appears to show how attitudes to these issues are changing. To return to Barbara Pompilin’s metaphor, only time will tell how hard the “sword of justice” will strike.
“Ecocide”: this term, while not well known until just recently, has made a dramatic entrance into current discourse. Driven by members of the Citizens’ Convention for Climate, which submitted its recommendations to the French government in June 2020, the government just proposed establishing an “ecocide offense.”
Etymologically speaking, this word refers to the “crime” (from the Latin word occidere) committed against the “shared home” (from the Greek word oikos), that being our planet. It first appeared in 1970 when the biologist Arthur W. Galston used it to denounce the United States Army’s use of a particularly toxic defoliant known as Agent Orange, which sadly became a well-known weapon of war in South Vietnam. While the chemical dioxin that Agent Orange contained caused serious health problems among those who were exposed to it, the herbicide also destroyed half of the region’s mangroves and nearly 15% of the forests. Formed to reflect the word genocide, the term ecocide is powerfully evocative. And just like for genocide, Galston advocated to have what he considered to be intentional destruction of the environment recognized in international treaties.
Nearly five decade later, countries like Vietnam as well as Ukraine, Russia and Georgia have now included it in their criminal code, and France is preparing to do the same. We would like to present a four-episode series that examines the stakes connected with recognizing the offense of ecocide.