Climate Change and the Judicial System – Legal Day at La Maison Française

On October 2, 2024, I attended a dynamic event at La Maison Française—the Climate Change and the Judicial System: Transatlantic Perspective panel, part of the French Series organized by the French Embassy in Washington, D.C. This event explored how courts, both nationally and internationally, are becoming pivotal in addressing climate change. It was an insightful discussion on how litigation is increasingly used as a legal tool to compel governments and corporations to meet their environmental obligations.

Climate Change Litigation: Insights from the Experts

The event opened with remarks from Agnès von der Mühll, Deputy Chief of Mission of the French Embassy, and Ambassador Céline Giusti, France’s Permanent Observer to the Organization of American States (OAS). This set the stage for a deep dive into climate litigation, with insights from:

• Professor Michael Gerrard, Director of the Sabin Center for Climate Change Law at Columbia University(USA),
• Judge Nancy Hernández López, President of the Inter-American Court of Human Rights (Costa Rica),
• Delphine Hédary, member of France’s Conseil d'État (the country’s highest administrative court).

These experts discussed the growing body of climate-related lawsuits, with over 2,800 cases filed globally, of which around 70% are in the United States. Professor Gerrard emphasized that many of these cases focus on greenhouse gas emissions, with plaintiffs turning to courts to enforce commitments made under national and international climate agreements. A landmark case cited during the event was Massachusetts v. Environmental Protection Agency (EPA). This case set a precedent by compelling the EPA to regulate greenhouse gases under the Clean Air Act. The Supreme Court ruled that GHGs qualify as pollutants, marking a significant victory in U.S. climate litigation history​.

France’s Legal Framework: Constitutional Environmental Protections

Delphine Hédary explained how France has embedded environmental protections in its Constitution through the Charter for the Environment. The Charter ensures:

• Article 1: The right to live in a healthy and balanced environment,
• Article 6: A duty on public policies to promote sustainable development while balancing economic and environmental goals,
• Article 9: The role of research and innovation in preserving the environment.

Hédary highlighted corporate accountability related to duty of care and diligence. French courts have increasingly ruled against companies for negligence, particularly when they fail to reduce their environmental impacts or properly assess the harm they cause. These rulings send a strong message to corporations: it’s no longer enough to claim to be sustainable—they must prove they are meeting their obligations under the law.

International Courts: Climate as a Human Rights Issue

Judge Nancy Hernández López highlighted the growing role of international courts in climate litigation, especially in cases where national governments fail to act. One powerful example she shared was the Inter-American Court of Human Rights' rulings to protect the Amazon rainforest and the indigenous communities who depend on it. These cases argue that environmental degradation violates basic human rights, including the right to life, health, and dignity.

Judge Nancy discussed a significant tool: provisional measures, legal orders that can prevent environmental harm while cases are still being heard. For instance, the court has intervened to stop illegal deforestation in the Amazon, recognizing the immediate threat it poses to both the environment and indigenous populations.

Corporate Accountability: The Rise of Greenwashing and Diligence Cases

Professor Gerrard also touched on the increasing number of cases involving greenwashing, where companies claim to be environmentally responsible without taking real action. In the U.S., regulators like the Securities and Exchange Commission (SEC) are investigating companies for misleading claims about their sustainability efforts, especially around net-zero emissions. Gerrard stressed that courts are now playing a critical role in ensuring that corporations are held accountable for both their claims and actions.

However, Delphine Hédary emphasized that in France, many cases revolve around corporate negligence in upholding their duty of care. French courts are holding corporations responsible not just for misleading advertising but for failing to actively reduce their environmental footprint, signaling the importance of diligence in climate responsibility​.

Concluding Thoughts: The Future of Climate Litigation

The event concluded with remarks from Anthony Manwaring, Justice Attaché at the Embassy of France in the United States, who reinforced the importance of litigation in driving climate action. He highlighted the need for global collaboration and emphasized the evolving role of the judiciary in holding governments and corporations accountable for their climate commitments.

The discussions at La Maison Française underscored that climate litigation is not just about protecting the environment but also about defending human rights. The role of the judiciary—whether at the national level through constitutional protections or the international level through human rights courts—is crucial in ensuring that future generations inherit a livable planet.

As climate litigation continues to evolve, courts will undoubtedly become even more central to shaping environmental policy and holding corporations and governments accountable.

Great to meet Professor Michael Gerrard after the event at the French Embassy. His expertise on climate litigation was insightful and inspiring!