A guest post by Sylvie Gallage-Alwis and Gaëtan de Robillard, a partner and lawyer respectively in the Paris office of City firm Signature Litigation
Will 2020 see major growth in climate justice litigation? The decisions handed down in 2019 and the news during the first quarter of 2020 suggest it will. European states, whose failure to act for the protection of the environment has been acknowledged by European and national courts, are becoming the scene of various strategic actions.
Over the last year, we have seen authorities around the world adopt an increasing number of environmental standards. The guarantees provided for come in many different forms and notably include the right to pure air, the right to health and more generally, the right to life.
To enforce these rights, actions are brought before courts and follow a pattern that is well known by mass litigation practitioners in the field of toxic tort. It consists in obtaining decisions whereby the state’s responsibility is engaged on the principle, before turning to companies to seek compensation.
The first step came a few years ago when the Court of Justice of the European Union (CJEU) started to condemn member states. In 2014, it ruled that when a member state fails to comply with the requirements set out by the EU directive on ambient air quality and cleaner air for Europe, national courts shall order the national authorities to establish an air quality plan in accordance with said Directive.
A landmark decision in Holland in 2018 (Urgenda) ordered the Dutch state to reduce its greenhouse gas emissions by 25% by 2020. The same year, the High Court ordered the UK government to produce a new air quality plan in compliance with the European requirements.
The CJEU has found France guilty of automatically and repeatedly going over the limits set for nitrogen dioxide and not taking the appropriate measures to reduce this in the shortest time possible. There have been similar rulings against Poland and Hungary.
The French decision followed several domestic rulings acknowledging the state’s failure to act, most recently the Administrative Court of Lille. But, like others before it, the Lille court did not go down the path of compensation, saying there was no evidence of a causal link between the claimant’s breathing problems and the peak of pollution over the period at issue.
This is what happened once the French state acknowledged responsibility for asbestos in 2004. Businesses were the target of thousands of actions and of case law creating from scratch an almost automatic compensation system in the years since. Millions in damages were paid by companies for using a legal product, not the state for not banning the product early enough.
When it comes to air pollution or other important environmental pollution, considering that the number of claimants can rapidly get out of hand, a similar approach could become unsustainable for the future of businesses. The causal link should in our view become the cornerstone of air pollution litigation, where the ‘toxic substance’ is diffuse and multi-exposure exists by nature.
However, the summons served on Total on the grounds of the French Vigilance Act has shown how to overcome this difficulty. According to this Act, corporations of a certain size must adopt and implement a vigilance plan which contains reasonable measures to identify risks and prevent serious violations of environmental protection resulting from the company’s activities.
This is a strategic action as it does not create any need for claimants to prove a causal link between pollution and alleged diseases. These are proceedings aimed at holding companies to account for the statements they made on the role they will play for environment protection.
Another way to avoid any scientific or medical debate specific to a claimant lies with actions relating to the fear of developing diseases in the future or seeing our planet affected, as in the case of litigation relating to asbestos where the concept of ‘anxiety’ has emerged.
It is not inconsequential that the term ‘eco-anxiety’, defining anxiety linked to climate change, has appeared in the public debate.
Companies therefore need to prepare to multi-facet litigation because of their activity and the declarations they made.