In Reflets Magazine #145, lawyers Clémentine Baldon (E99) and Hugo Partouche¹ (E14) explain their role in the Affaire du Siècle, a landmark case for climate justice. Here is a free online translation of the article… click here to get the next issues (in French)!

Reflets Magazine: What were the grounds for the Affaire du Siècle?

Clémentine Baldon: The Affaire du Siècle is a legal action taken before the administrative courts by four NGOs: Notre Affaire à Tous, Fondation pour la Nature et l’Homme, Oxfam and Greenpeace France.

Hugo Partouche: The aim was to have a court find a contradiction between the inaction of the French State and its acknowledgement of the climate emergency, in other words, to obtain a legal ruling on the State’s obligation to limit global warming to 1.5°C and to impose injunctions to act in this regard.

C. Baldon: Prior to the Affaire du Siècle, public figures could not be held liable for environmental harm, contrary to private parties. This loophole had to be opened.

RM: What was the court’s ruling?

H. Partouche: The Paris Administrative Court acknowledged firstly, in the wake of the Grande-Synthe Municipality Decree issued by the State Council, the binding nature of the emission reduction aims and the fact that the State was liable for not having complied with the initial carbon budgets set out in the National Low-Carbon Strategy (SNBC). Secondly, it ordered the government to take all the necessary measures to make good the environmental damage cause by this breach.

RM: What are the implications of this ruling?

C. Baldon: Firstly, the State can no longer postpone its action indefinitely; there are deadlines to be met which the judge agreed to assess progressively. Furthermore, the State can be held liable for failing to engage adequate means in the fight against climate change.

H. Partouche: Our action thus enabled the formal acknowledgement of the State’s failings, created new means of action to protect citizens and the environment against climate change, and reiterated that the legal system is the guarantor of law enforcement on the part of the government.

RM: The Affaire du Siècle forms part of a vast movement to “judicialise” climate issues. Where is this movement at in France?

C. Baldon: In public law, the fight against climate change regularly makes huge leaps forward, for example with regard to air pollution. At the same time, the acculturation of administrative courts is advancing at a rapid pace. In 2022 alone, the State Council and Constitutional Council issued several fundamental rulings to enhance these legal systems.

H. Partouche: In civil and criminal law, we are seeing the emergence of certain litigations against businesses, but a lot of groundwork remains to be done to ensure the accountability of the private sector.

RM: And in other countries?

C. Baldon: There is a noticeable expansion of climate justice on a worldwide scale. We actually need to speak of this in the plural, given the various forms it can take, such as carbon budgets in Ireland, the duty of care in the Netherlands, climate proceedings in the USA which oppose federal states and oil companies, or the Columbian Supreme Court’s ruling on deforestation.

RM: What role do these proceedings play in relation to activism and political action?

H. Partouche: The various actions are complementary. Political and activist initiatives intervene upstream, to impose the legislative inclusion of the fundamental principles of environmental protection and the fight against climate change. Climate justice occurs downstream, to ensure the proper implementation of these principles, by drawing on the guarantee of the separation of power. Climate justice basically calls on the whole notion of constitutional balance.

RM: Have other climate justice proceedings been initiated in France since the Affaire du Siècle?  

C. Baldon: A growing number of cases against major companies are being brought before the courts, in particular on the grounds of duty of care. Total, for example, was recently brought before the Paris court regarding the construction of an oil pipeline in Uganda and Tanzania.

RM: Have you personally taken on new proceedings?  

H. Partouche: For the time being, my action is focused on criminal law tools for environmental protection. The growth of my legal firm has allowed me to train players on the ground (organisations, activists and public representatives) in the means of litigation available to them. I’m also working on the possibilities for EU criminal law in this area.

C. Baldon: I’m currently representing five young victims of extreme climate events (fires, flooding and hurricanes) in proceedings against twelve States (France, the Netherlands, the UK, Switzerland, etc.) before the European Court of Human Rights. We are arguing that the Energy Charter Treaty (ECT), of which these countries are signatories, is incompatible with their obligation to drastically reduce their greenhouse gas emissions. This treaty actually allows foreign investors to prosecute States before private arbitrators and to demand substantial compensation in the event of a regulatory change which harms their interests. Several States, including France, have responded by announcing their withdrawal from the treaty. I also represent consumer and environmental protection groups in litigations involving products that claim to be “carbon neutral”, and carbon neutral engagements which are simply a form of greenwashing. We seek prosecution on the grounds of deceptive marketing practices.

¹ As an associate to Emmanuel Daoud

Interview by Louis Armengaud Wurmser (E10), Content Manager at ESSEC Alumni

Translation of an article published in Reflets Magazine #145. Click here to get a complimentary access to the issue (in French). Subscribe here to get the next issues (in French).