Climate trials, an effective lever of pressure to influence the policy of States?

Sixteen young people are suing the state of Montana for violating their constitutional right to a "clean and healthy environment." In recent years, climate-related legal actions have multiplied to push countries and large groups to act. With what results?

Demonstration for climate justice, in the United States (illustration image). © Wikipedia

Text by: Aurore Lartigue Follow

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Can the state of Montana be held responsible for climate change? This is the question that must be answered by the justice of this state of the American North-Westpursued by sixteen young plaintiffs. Their argument: local energy policies, by favoring fossil fuels, will aggravate climate change and therefore deprive them of the right to a "clean and healthy environment". A right yet written in black and white in the Constitution of Montana.

Described as "historic" by the New York Times, this trial is part of a "global wave" of climate action, says Judith Rochfeld, author of Justice for the Climate! New forms of citizen mobilization. "Apart from large emitting countries where this is not possible, such as China, Saudi Arabia or Russia, we are witnessing many so-called 'climate' lawsuits, whether against states or companies on all continents.

The Urgenda case

It was the Paris climate agreement in 2015 that changed things. "Countries have been forced to set and post specific national targets. Even if they were non-binding, states were able to incorporate them into their legislation," explains the professor at the Sorbonne Law School. This has facilitated legal actions, as States can now be attacked on their commitments. The number of climate-related lawsuits exploded.

But the landmark trial in climate justice is in Urgenda, the Netherlands. In this procedure brought by the Urgenda association, 886 citizens accused the country of not taking sufficient measures to fight against global warming. After a long legal battle, the court upheld the 2019 judgment on appeal in 2015, ordering the Netherlands to reduce its greenhouse gas emissions by 25% by 2020 compared to 1990 levels. A world first since it marks the fact that the responsibility of a particular State can be recognized in global warming, even if greenhouse gas emissions are global.

Since then, other major cases have marked the history of climate justice. Such as L'Affaire du siècle in France in which the Paris Administrative Court held the State liable for ecological damage caused by the State's inaction in its fight against climate change. The French state was thus considered responsible for poor management of climate policies.

From political pressure to financial pressure

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The aim in these legal actions, as for Urgenda, is to put pressure on the state to change its policy, explains Judith Rochfeld. In the case of Montana, it is to recognize that this state, through different laws and its climate policy, does not guarantee a stable climate, promotes greenhouse gas emissions and therefore should change policy. If this request were successful, it would mean that any laws in Montana that would be contrary to this issue, that would favor for example fossil fuels or that would be insufficient to counter climate change, could be challenged as unconstitutional.

These legal actions are therefore a means of political and media pressure, insofar as it contributes to the awareness of citizens. "Even if it's not new, the fact that it's young people taking action is important. Symbolically, it is a representation of the present generation that bears the burden," says Judith Rochfeld.

But to ensure that states take more urgent action, justice can also wave the financial threat. In the case of L'Affaire du siècle, where the French state was condemned for climate inaction, the NGOs gathered within the collective asked this Thursday, June 14 before the administrative court of Paris a billion euros of penalty. They believe that this is a way of forcing the state to spend this money on the climate. The decision will not be known for months but if it is validated, it would represent a historic sum.

There is a precedent in France. In 2020, theCouncil of State had ordered the France to improve air quality in order to comply with European standards, incorporated into French law, in areas where this was not the case, under penalty of a penalty of ten million euros per semester of delay. The following year, judging that the efforts were not enough, the sanction fell. Since then, the situation has been regularly reviewed: improvements have been noted, but the thresholds remain exceeded in several areas, particularly in the agglomerations of Paris, Lyon and Marseille. Since 2021, the State has therefore been ordered to pay two new penalties of 10 million euros. The sums were donated to air pollution associations. And so it may not be over.

But justice sometimes has a less firm hand. In the case of Grand-Synthe, this commune in northern France particularly exposed to the risks of marine submersion and flooding, the Council of State recognized the State's inaction and urged it to act to reduce greenhouse gas emissions. But in its latest decision, dated May 10, the high court once again notes the inadequacy of the State in its climate policy and reiterates its request for action. A decision that is not accompanied by any penalty. This time, therefore, the judges preferred to give the state a chance rather than pinning it for its slowness or poor management of climate policies. At the risk, some believe, in the absence of financial pressure, of wasting time in the face of the climate emergency. "The multiplication of trials creates pressure, but of course this is not everything," says the climate law specialist.

The Montana case is unprecedented in that it is the first in a series of such proceedings to reach trial in the United States. In 2020, a similar case, Juliana v. United States, was dismissed after generating an outpouring of support. Twenty-one children had filed an appeal in an Oregon court in which they asked the US federal government to significantly reduce CO2 emissions, believing that their constitutional rights had been violated. Other climate-related cases are ongoing in the states of Florida, Utah, Hawaii and Virginia. "If successful," says Judith Rochfeld, "the Montana case could be a spark for all the others, as was the Urgenda case.

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