Climate conscious courts: Recent cases in France, the UK and the US: Article by LPRU intern

In the preamble to the Paris Agreement, signed in 2015 by 175 parties, it was acknowledged that ‘climate change is a common concern of humankind’, and that all parties have ‘common […] responsibilities’ to combat the climate crisis. This global consensus is without doubt necessary to tackle climate change successfully. Yet in the past year, courts in three major jurisdictions – France, the UK and the US – have handed down judgments which give divergent views on crucial issues in environmental law.

In these three recent cases, the French Conseil d’Etat (Council of State) was an outlier in its willingness to hold the French government to account over its promises on climate change, while the UK Court of Appeal was reluctant to engage with the more stringent climate obligations imposed by the lower courts. The US Supreme Court was most allergic to climate-friendly policies, and signalled it would censure any particularly activist plan by the Environmental Protection Agency (EPA) without specific legislative support. Through analysis of these three judgments, this article will consider the inconsistency with which climate and environmental issues are being dealt with in these jurisdictions. The broader point is that dire straits for the global consensus necessary to tackle the climate crisis are predicted if divergent rulings with differentiated commitment to encouraging stricter climate action continue to emerge from these major jurisdictions.

What emerges in each of these cases is that every judge has a choice regarding the extent to which they are sensitive to the climate crisis when deciding their judgments. It does not follow from this, of course, that judiciaries should dictate climate policy. The key decision whether to write the Paris Agreement into national law – which France did, but the UK and US did not – is a political choice. But there is nevertheless a vital margin of judicial interpretation, emergent most clearly in the partisan American judgement, where Republican appointees supported the majority opinion in comparison to the Democrat-appointed dissenters. When this margin of judicial interpretation is considered alongside the unified global action needed for climate change, perhaps we can expect judges to develop what the Australian justice Brian Preston calls ‘climate consciousness […] an awareness of the climate crisis, its causes and consequences’ that can ‘inform a court’s choices in finding, interpreting, and applying the law’. What we learn from the detailed analysis of the three cases presented in this article is that such climate consciousness is necessary if the consistency implied by the Paris Agreement will ever be met in practice. To use a popular phrase, judges must become industry leaders in climate-conscious jurisprudence.

The three cases analysed in this article are:

• France – Commune de Grande-Synthe v France, decided on 11 July 2021, a complaint related to which is awaiting examination by the European Court of Human Rights’ (ECtHR) Grand Chamber under the designation Carême v France;
• The UK – the Court of Appeal’s decision in R (Richards) v Environment Agency, which was given on 17 December 2021 and refused hearing in the Supreme Court on 1 February 2022; 
• The US – West Virginia et al v Environmental Protection Agency et al, decided on 30 June 2022. These cases demonstrate considerable differences regarding the extent to which the judiciary has either actively encouraged, or attempted to hamper, the enforcement of progressive climate policies.

Regulators as agents of climate-friendly policy

Both the UK and US cases turned on the proper functioning and remit of environmental regulators. In West Virginia, the US Supreme Court considered whether the EPA could implement a plan to reduce emissions from coal power plants without specific backing from Congress. The case was instigated in 2015, when the EPA promulgated the Clean Power Plan, a key part of which focused on ‘generation shifting’ energy production. As Justice Roberts’ majority opinion described, this concept ‘would implement a sector-wide shift in electricity production from coal to natural gas and renewables’ (p 9). In 2016, the Clean Power Plan was stayed by the Supreme Court, and it was then repealed by the Trump administration in 2019. Although the Biden administration has indicated the Clean Power Plan will be shelved in favour of a more up-to-date rule, the Supreme Court still held that the case could be brought (p 14).

In trying the case, the Supreme Court found that the EPA does not have the jurisdiction to enforce the generation shifting approach without firmer legislative support. The EPA had claimed this power under Section 111(d) of the Clean Air Act. Section 111(d) is essentially a ‘“a gap-filler” empowering the EPA to regulate harmful emissions not already controlled’ (p 5). But since the enactment of the statute in 1970, Section 111(d) has been used only a handful of times, for example, to limit emissions from sulphuric acid production (p 6). Using Section 111(d) to support a ‘generation shifting approach’ to energy production, however, would require the retirement of ‘dozens of coal-fired plants, and eliminate tens of thousands of jobs’ (p 10). Tackling this disjunct between the vague support from Section 111(d) and the profound change entailed by ‘generation shifting’, the majority opinion invoked the ‘major questions doctrine’. It argued that only with ‘a clear statement’ could Congress delegate such broad powers to a regulator. Since Section 111(d) was ‘oblique’ the Court ruled that the EPA could not use it to adopt ‘generation shifting’ measures, stating that ‘a decision of such magnitude and consequence rests with Congress itself’ (p 31).

While the US Supreme Court precluded the regulator from implementing a climate-friendly plan to reduce carbon dioxide emissions from power generation, in Richards it was the regulator – in this case the UK Environment Agency (EA) – that was accused of failing properly to regulate emissions. Originally brought on behalf of Mathew Richards, a child with health conditions exacerbated by emissions from the Walleys Quarry Landfill Site, the claimant argued that the EA breached Articles 2 (the right to life) and 8 (the right to respect for private and family life) of the European Convention on Human Rights (ECHR). In a dense High Court judgment, Fordham J held that the EA’s positive obligations to act under Articles 2 and 8 were triggered by the Richards’ exposure to harmful gases (paragraphs 55 and 57). Fordham J located these operational duties in the fulfilment of advice from Public Health England (PHE) (paragraph 60). He issued a declaration that bound the EA to implement PHE’s advice, including specific emissions targets, methods and timescales (paragraph 64). In a reverse of the roles in the US case, the High Court in London pushed the EA to regulate more stringently the emissions from sites it oversees.

However, Fordham J’s judgment was subsequently overturned in the Court of Appeal following the EA’s appeal on two grounds. First was that it was not for the judge to determine the specifics of emission reduction targets. Second was that the judge’s declaration was unjustified since no breach of the EA’s obligations was discovered and, furthermore, the specificity of the declaration would warp the flexibility needed for the careful regulation by the EA of the environmental and climate field (paragraph 57). Both grounds of appeal succeeded. The Court of Appeal was unwilling to, as Jasper Gold wrote in the UK Human Rights Blog, ‘step […] in to tell a regulator how to do its job’.

In the French case, although Commune de Grande-Synthe did not involve regulators, there are notable parallels with the UK and US cases. This case was brought against the French President and various government ministers, and asked the Conseil d’Etat to enjoin the government to act in accordance with French national and international climate commitments. Thus, just as Mathew Richards looked to the regulator to act in the UK, the Grande-Synthe municipality considered government officials as the proper agents for progressive climate action in France.

On reviewing France’s commitments, particularly the Paris Agreement, the Conseil d’Etat ordered the government to enact policies that would attain stated emission reduction targets by 31 March 2022. In this way, the Conseil d’Etat’s decision mirrors Fordham J’s judgment in the UK, interpreting as binding certain instruments that would lead to more radical emissions reductions.

Judicial interference in attempts to tackle climate change

In Richards, the appeal succeeded essentially because Fordham J had extended the court’s jurisdiction too far into the EA’s remit. The Court of Appeal disagreed with the extent of judicial control Fordham J believed necessary to ensure the EA acted according to human rights standards. It was held that it is not Fordham J’s job to interfere ‘in a complex regulatory and technical sphere’ by deciding that following PHE advice constituted the sole strategy by which the EA could abide by human rights law (paragraphs 85, 98–99). The Court of Appeal was satisfied that the EA had attempted to meet these standards through other methods, and its opinion thus reprimanded Fordham J for doing ‘precisely what he recognised that a court should not do […] he decided what level of emissions would be acceptable’ (paragraphs 92 and 96).

As Justice Kagan argues in her dissenting opinion in West Virginia, the majority opinion allows the US Supreme Court likewise to do precisely what a court should not do. Kagan essentially claims that the majority ruling is a judicial power grab. With some bitterness she writes that a nominally textualist court – as the recent Dobbs v Jackson case demonstrated, the Supreme Court is particularly keen to measure current legislation against the US founding documents – ‘magically’ invented the major questions doctrine, even though this appears nowhere in the Constitution nor in legislation (p 28). The majority intended to prevent a standard reading of the Clean Air Act which, according to Kagan, would understand the Act as requiring only whichever policy constitutes the ‘best system of emission reduction’ (p 4). For Kagan, the Act does not rule out generation shifting simply because it is ‘too big a deal’ (p 5). Instead, the Act actually supports the concept, being deliberately flexible to respond to ‘changing circumstances’ (p 12). Promising to ‘constrain EPA’s efforts to address climate change’ by using a novel legal doctrine to nullify any seemingly radical forthcoming EPA policy, the Supreme Court has, Kagan argues, frustrated the necessary ‘constraint on judicial authority – that insistence on judicial modesty’ (pages 4 and 13).

The technicalities of the US Supreme Court dissent and Court of Appeal judgment naturally differ. The dissenting opinion in West Virginia involved what the EPA could do regarding emissions reductions, while the Court of Appeal decision in Richards involved what the EA did not have to do according to human rights standards. But in essence the argument was the same: the judiciary should not overextend its authority. Yet, one wonders whether Justice Kagan would sympathise with the extension of judicial powers if they were used to support more drastic emissions reductions, such as those implied by Fordham J’s judgment, or indeed with the judicial interventionism constituted by Commune de Grande-Synthe. Regarding the latter, when compared to the logic of Justice Kagan’s dissenting opinion, or the ‘judicial modesty’ of the Court of Appeal in Richards, the decision by the Conseil to order the French government to comply with the Paris Agreement appears radically interfering. Like the majority opinion in West Virginia – or with a very different intention, Fordham J’s judgment in Richards – it effectively renders the executive’s environmental activities subject to judicial oversight.

Judiciaries on ‘the science’ and the ‘rights turn’ in climate litigation

The power of regulators and judicial interference in climate legislation constituted the two major themes of these cases. But, as side issues, these three cases also cast light on other pertinent topics.

First, a particularly revealing subject is the attitudes the three judiciaries display on ‘the science’ of climate change. Unsurprisingly, climate science is a marginal issue for the majority opinion in West Virginia, which, in a flippant formulation, was concerned not with discovering a ‘solution to the crisis of the day’ (p 31). Equally unsurprisingly, Justice Kagan’s dissenting opinion is prefaced by an exposition of the climate crisis: ‘Modern science is “unequivocal that human influence […] has warmed the atmosphere”’ (p 2). The Conseil d’Etat was similarly attuned to the scientific consensus, and Stéphane Hoynck describes the need for ‘decisive action now’ to ensure carbon neutrality as ‘a key scientific point’. In the Richards High Court judgment, the depth of scientific analysis is striking. Fordham J considered differing guideline hydrogen sulphide levels (paragraph 12), four harms from excessive emissions (paragraph 19) and the connection between hydrogen sulphide and Mathew Richards’s health (paragraphs 22–25). With climate litigation becoming a preferred strategy for climate activism, we will likely find increasingly common the prefacing statements found in Justice Kagan’s dissent and in Stéphane Hoynck’s consultative opinion. Courts must also prepare, like Fordham J, to engage more deeply in the technicalities of climate science.

Second, two of these cases reflect the increasing relevance of human rights to climate litigation. Unlike West Virginia, Richards and Commune de Grande-Synthe raised human rights as an issue. The Conseil demonstrated human rights could be made amenable to climate activist litigation, while the Court of Appeal decision foreclosed such a strategy. As Stéphane Hoynck reminded the Conseil, from 2003 ‘many decisions of the [ECtHR] environmental damage […] has led to a violation of one of the rights guaranteed under Article 8’. Since the French government failed to comply with the 31 March deadline, Damien Carême, the former mayor of Grande-Synthe, complained to the ECtHR Grand Chamber. He argues that the failure of the French authorities to take all available measures to limit emissions violates Article 2 and Article 8 of the ECHR. Regarding the former, France has failed in its obligation to ‘protect the lives of persons under their jurisdiction’, while concerning the latter, climate change ‘is already affecting the conditions in which [Carême] occupies his property’. Hearings related to Carême v France will likely take place before the end of this year.

Whether Mathew Richards was denied the rights enshrined in Articles 2 and Article 8 of the ECHR were fundamental to Fordham J’s judgement in Richards. But the Court of Appeal found that the EA was not in breach of either Article at the time of hearing (paragraphs 92–93 and 95). As Michael Feeney argues, the Court of Appeal was reluctant to ‘follow the example of other courts […] increasingly willing to find in favour of claimants alleging that their human rights have been breached by inaction over climate change’. This reluctance is due to be reinforced. The UK government’s new bill of rights promises to suspend the fledgling synergy between human rights and environmental law. In late 2021, the Ministry of Justice announced its intent to ‘restrain the ability of the UK courts to use human rights law to impose “positive obligations”’ – those which Fordham J judged were triggered by the landfill site emissions – ‘onto our public authorities without proper democratic oversight’. Flora Curtis comments: ‘Restricting the development of those positive obligations could remove a powerful tool [which prevents] untrammelled harm to the environment.’

Conclusion: Consequences for the global consensus on climate action

We have thus seen that the US Supreme Court is most restrictive on climate action, the Conseil d’Etat the most progressive, and the UK judiciary sits somewhere in between. Both the US Supreme Court and the Conseil d’Etat were willing to exercise expansive judicial authority in order, respectively, to limit the power of the environmental regulator and to enjoin government ministers to abide by earlier promises. That the UK Court of Appeal, recoiling from the interventionism of Fordham J’s judgment, preferred a more modest approach to judicial oversight of regulators and the management of emissions chimes with its position in the middle ground between the US and French judiciaries.

Dealing with the climate and environmental crisis is fundamentally an international problem. Yet on a national level, as we have seen, broad international aspirations are bogged down by a morass of legislation and case law. This leads to direct conflict between courts of similar seniority in jurisdictions, even though each of these states are signatories of landmark international agreements, in particular the Paris Agreement. Lord Carnwarth recently commented that ‘it is critical to keep in mind that we have at international level, the underpinning of the Paris Agreement 2015’. He also observed that different jurisdictions have acted in different ways ‘to give real teeth to the Paris Agreement commitments’. Yet the three cases discussed here show that the Paris Agreement was not a common foundation to which the UK, the US and France responded; indeed, the Paris Agreement was only relevant in the latter’s case. It is only worth keeping the Paris Agreement in mind if it does actually underpin the environmental exploits of different jurisdictions across the world.

We have also seen, however, that domestic legislation and case law is of course differently weighted by different judges, evidenced most clearly by the differing judgments of the UK High Court and Court of Appeal, and the US Supreme Court’s dissenting and majority opinions. As discussed at the outset of this article, the question which follows is whether the present emergency places a similar burden on jurisdictions across the globe to act with particular care in regard to environmental law cases. Perhaps, in short, the urgency of the climate crisis has resulted the growth of a new branch in the living tree of the world’s constitutions. This is not to say that judges should rule by anything but the law, but that they should discharge climate cases with vivacity and sensitivity, and devise powerful measures by which a court can hold a government to account over its orders.

If they should choose to do so, there are several examples in international environmental law in which one discovers a precedent for ‘climate consciousness’ displayed by judges. We single out one such case for consideration here. This is the well-known decision of the Supreme Court of the Philippines in Oposa v Factoran, where 43 children from across the Philippines brought a challenge against the state’s distribution of timber cutting licences, in the name of themselves and of ‘generations yet unborn’. In 1987, the new Philippine Constitution had claimed as a state policy that: ‘The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.’ However, in his judgment finding in favour of the 43 children, Justice Hilario Davide Jr claimed that it would not have been necessary even for the Constitution to include such a provision. As he decided:

‘While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation – aptly and fittingly stressed by the petitioners – the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind.’

What Justice Hilario Davide Jr demonstrated in 1993 is certainly the climate consciousness which Brian Preston calls for. It is the idea that due to their crucial nature, rights to an environment and to a balanced and healthful ecology are somehow fundamental, and should be brought to bear by courts in all jurisdictions. In other words, climate consciousness places on judges a heavy burden to hold governments and other organisations to account in climate cases, achieved by paying zealous and unceasing attention to commitments enshrined in the Paris Agreement, international or domestic law, and elevating the significance of older environmental legislation and case law according to the critical nature of the current crisis. If the judiciaries of France, the UK and the US had considered such rights as similarly fundamental, perhaps the divergent rulings analysed above would not have emerged. Instead, rulings similarly conscious of the crisis we face may have been handed down.

Relevant documents

West Virginia v Environmental Protection Agency

Majority opinion at p. 7, dissenting opinion at p. 57:

https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf

R (Richards) v Environment Agency

Court of Appeal Judgement:

https://www.bailii.org/ew/cases/EWCA/Civ/2022/26.html

High Court Judgement:

https://www.bailii.org/ew/cases/EWHC/Admin/2021/2501.html

Commune de Grande-Sythe v France

Consultant Judge’s Opinion:

https://www.conseil-etat.fr/fr/arianeweb/CRP/conclusion/2020-11-19/427301?download_pdf

Order of the Conseil d’Etat

http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2021/20210701_Not-Yet-Available_decision.pdf

Endnotes

• For the status of the Paris Agreement in British Law, see R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 0042.
• Robert Carnwarth, ‘Climate-conscious courts: reflections on the role of the judge in addressing climate change’, (Grantham Research Institute, 19 January 2022) https://www.lse.ac.uk/granthaminstitute/news/climate-conscious-courts-reflections-on-the-role-of-the-judge-in-addressing-climate-change accessed 23 July 2022.
• Jasper Gold, ‘Court of Appeal examines limits of judicial authority’ (UK Human Rights Blog , 17 February 2022) accessed 20 July 2022.
• The Conseil interpreted the Paris Agreement as akin to domestic law. As the Minister of Ecology claimed in 2019, France was ‘one of the first countries to enshrine […] in law […] carbon neutrality […] a concrete translation of the implementation of the Paris Agreement’ (Consultant Judge’s opinion, p. 16). . Joana Setzer and Catherine Higham, Global trends in climate change litigation: 2021 snapshot (Grantham Research Institute, 2021), pp. 32-34,https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf accessed 24 July 2022. A growing body of jurisprudence and scholarship is emerging on this issue. See Ioane Teitiota v. New Zealand, UNHRC (7 January 2020); UNHRC, ‘General Comment on Right to Life No. 36’ (2018), UN Doc CCPR/C/GC/36; Ginerva Le Moli, ‘The Human Rights Committee, Environmental Protection and the Right to Life’ (2020) 69 International and Comparative Law Quarterly 743; UNEP ‘Climate Change and Human Rights’ (2015) https://wedocs.unep.org/20.500.11822/9934 ; UNHRC Res 2627 ‘Human Rights and Climate Change’ (15 July 2014), UN Doc A/HRC/Res/26/27 (July 15, 2014).
• While human rights claims often find little traction in US courts, human rights have been raised in this jurisdiction as an argument against renewable energy projects: see Backcountry Against Dumps v. U.S. Bureau of Indian Affairs.
• ECHR, Hatton and others v. United Kingdom, Grand Chamber, 8 July 2003, No. 36022/97
• European Court of Human Rights ‘Grand Chamber to examine complaint that France’s action to prevent climate change has been insufficient’, (Registrar of the Court, 7 June 2022).
• Maria Antonia Tigre, ‘Advancements in Climate Rights in Courts Around the World’, (State of the Planet, News from the Columbia Climate School, July 6, 2022) accessed 23 July 2022. Carême v France will likely be heard together with the similar climate cases Klima Seniorinnen v Switzerland, and Duarte Agostinho and Others v. Portugal and 32 other States.
• Michael Feeney, ‘R (Richards) v Environment Agency [2022] EWCA Civ 26: A Return to Normalcy’, (Francis Taylor Building Environmental Law Blog, 14 February 2022) accessed 20 July 2022. Although, the Court of Appeal did accept that Articles 2 and 8 could be applied where industrial activity had caused pollution, but asserted, against Fordham J, that this had not occurred in the Richards case (para 15). Such is the case as this article is being written, but we will see whether Liz Truss scraps these plans in the early days of her premiership.
• Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights (Consultation Outcome), (12 July 2022), para 229 onwards accessed 14 July 2022.
• Flora Curtis, ‘The Bill of Rights, Positive Obligations, and the Environment’ (Francis Taylor Building Environmental Law Blog, 5 July 2022) accessed 20 July 2022. One curious turn of events could be if, before the Bill of Rights comes into force, the Grand Chamber rules in Carême v France that Articles 2 and 8 impose positive obligations on states to reduce emissions. Would the UK courts thus be pushed – further than the Court of Appeal was willing in Richards – by ECHR jurisprudence into recognising the government’s positive obligations to introduce more sweeping policies to meet emissions targets, as the Conseil d’Etat ordered of the French government? Or, since the UK government has announced its intention not just to restrict the courts imposition of new positive obligations in forthcoming ECHR jurisprudence but also existing obligations, would the UK judiciary be quelled by the rescission of positive obligations, thus drastically reducing the judiciary’s ability to act if climate policies undermine human rights?
• ‘Legal Responses to Climate Change: Lord Carnwarth (UK)’ (8 November 2021) This reference is to Edwards v Canada (1930) AC 124. Oposa, et al. v. Factoran, Jr., et al., G.R. No. 101083, 224 S.C.R.A. 792 (July 30, 1993) (Phil.).