The “Trial of the Century” – a new decision has been rendered by the Paris administrative court

On 14 October 2021, the Paris administrative court rendered a new decision in the so-called Trial of the Century.

As a reminder, back in December 2018, , four NGOs - Oxfam France, Greenpeace France, Notre affaire à tous and the Fondation pour la nature et l’homme - sued to the French government for compensation about the ecological and non-material harm resulting from their climate inaction. It was rejected and the NGOs filed a complaint before the Paris administrative court.

On 3 February 2021, the Paris administrative court found (i) that there is ecological damage in France due to climate change and (ii) that the French State is partly responsible for this ecological damage. The court ruled that the French State should compensate for the ecological damage caused by its failure to comply with France's greenhouse gas emission reduction targets. Nevertheless, the court decided to order further investigations before ruling on the evaluation and concrete methods of compensation for this damage.

On 14 October 2021, the Paris administrative court rendered its final decision in this case. For the first time, a court has ordered the French State to compensate for the consequences of its failure to combat climate change.

This unprecedented decision is the latest in a series of rulings by the administrative courts against the French State for its failure to combat climate change. Recently, on 1 July 2021, the Conseil d’Etat, had enjoined the French Government in the Grande-Synthe case to take additional measures by 31 March 2022 to meet the target of reducing greenhouse gas emissions by 40% by 2030. In July 2020, the Conseil d'Etat ordered the French Government, to act to improve air quality in several zones, and attached to this judgement a deferred fine of €10 million, to be imposed every six months if the Government failed to improve air quality as decreed. In August 2021 the Conseil d’Etat condemned the French Government to pay 10 million euros for not having sufficiently improved the air quality during the first six months of 2021.

Regarding the assessment of the ecological damage, the court noted that the greenhouse gas emission targets set by the first carbon budget for the period 2015-2018 had been exceeded by 62 Mt CO2eq ,The judges nonetheless consider that the unprecedented reduction in greenhouse gas emissions in 2020 (up to 47 Mt CO2eq) should be taken into account in the calculation of the damage "insofar as it allows, in part, to repair the damage observed as well as to prevent the worsening of the damage", even though it is mainly linked to the effects of the Covid-19 crisis, and not to a "specific action of the French State" as they point out. Thus, the court found that the ecological damage to be compensated is set at 15 Mt CO2eq.

Concerning the method of reparation, the administrative judges recalled that, under French law, compensation for ecological damage must be made as a priority in nature, and that damages shall only be allocated if the compensation measures in nature are insufficient. However, the court did not specify what measures should be taken to compensate in nature for this ecological damage, and that the determination of these measures was a matter for the Government.

The evaluation of the ecological damage and the way it should be compensated are the key elements of this decision and will certainly be major and determining features of future climate change litigations, whether against the French State or against companies.

For the NGOs involved, this court ruling is a revolution. The climate inaction of the French State is now considered both as illegal, and causing ecological prejudice that it must repair.

However, the latitude given to the French Government to determine the measures to be taken to repair the ecological damage, and the choice of the court not to attach a penalty to its injunction -contrary to what the NGOs had requested - limit the concrete implications of this decision, which therefore appears to be mainly symbolic.

It should also be noted that the French State has two months from the date of notification of the decision to appeal.

In Europe the emergence of climate litigation is not limited to France. In Germany, the Netherlands and Belgium, rulings have recently been issued to force governments and private companies to take measures to combat global warming.

These decisions increase the pressure on European governments to fight against global warming, which will be scrutinised at COP26 which opened on October 31, 2021 in Glasgow. In France, these issues will certainly be at the heart of the April 2022 presidential election campaign, which has already begun, and should be closely monitored by business operators.