PROCLIMEX/ALCOM SEMINARS
Session no. 6 in the series of seminars entitled "L'urgence écologique au prétoire" ("The ecological emergency in the courtroom") organised by the ANR PROCLIMEX programme and the ALCOM programme. Laboratory for legal innovation: climate trials in South America
1 February 2023 from 3.30 pm to 6.30 pm with :
- Fernanda de Salles Cavedon, Postdoctoral Fellow, Expert in HR, Disaster Risk Reduction, Climate Change, Human Mobility. Trends in climate litigation in South America: the law of nature and the greening of human rights
- Gonzalo SozzoProfessor at the Universidad del Costa de Santa Fe, Climate disputes in Argentina
- Julia NeivaDeputy Director of the NGO Conectas Direitos Humanos, Climate finance lawsuits in Brazil (PSB et al. v Brazil and the case against the Brazilian development bank)
- Angela Schembri PenaD. student at the Pontificia Universidad Javeriana and the Université Paris 1 Panthéon-Sorbonne, Climate trials and companies in South America
- Natalia Castro NiñoLawyer at the Inter-American Court of Human Rights and professor at the Universidad Externado de Colombia, Climate litigation and the case law of the Inter-American Court of Human Rights
Session 5 of the "L'urgence écologique au prétoire" series of seminars organised by the ANR PROCLIMEX programme and the ALCOM programme. Supreme Court judgments and other pending climate appeals
30 November 2022
Organised by the Professor of Public Law Christel COURNILThis seminar brought together three speakers: Mathilde BoutonnetProfessor of Law, University of Aix-Marseille ; Ivano Alogna, Research Leader in Environmental and Climate Change Law, British Institute of International and Comparative Law ; Filippo P. Fantozzi, Legal Associate, Climate Litigation Network.
I. The "West Virginia v. EPA" decision by the US Supreme Court
In her speech, Professor Mathilde Boutonnet discusses the decision " West Virginia v. EPA[1] handed down by the US Supreme Court on 30 June. This decision is part of the climate lawsuit movement that began in the United States with the "Massachusetts v. EPA[2]. This movement of lawsuits oscillates between two main trends, one consisting of going before the judges to ask them to impose measures to strengthen the fight against climate change, and the other aiming to challenge the measures taken to combat climate change. The case of "West Virginia v. EPA is part of this second trend, through litigation against the measures adopted by the Federal Environmental Agency (EPA) which were intended to regulate the energy sector and bring about a real change in the energy model.
The question put to the Supreme Court in the case of "West Virginia v. EPA was whether the Federal Agency had the power to adopt a plan to bring about this energy change. In this decision, the majority opinion responded unfavourably. Through an extremely liberal interpretation of the US Constitution, the Court stated that, although the plan had never been implemented, the plaintiff States and companies had an interest in bringing the action. Professor Mathilde Boutonnet points out that the examination of the admissibility of the action is a key moment in American climate trials, since it may enable the judges to limit the policy of combating climate change.
In essence, this decision deprives theEPA of a timely competence to reduce greenhouse gas emissions and accelerate the energy transition. By refusing theEPAthe Court would in a way be It's not just a question of "making climate policy itself". Lastly, this decision shows how reluctant the Court is to issue future rulings favourable to this transition.
II. The UK High Court ruling on the Net Zero strategy
In his speech, researcher Ivano Alogna presents what he describes as a "revolutionary" ruling by the British High Court on the Net Zero (2022) strategy[3]. In its ruling, the High Court concluded that the UK government's plans to reduce greenhouse gas emissions were inadequate and in breach of domestic legislation. Three separate claims have been brought against the Government on the basis of the Net Zero by 2050 strategy adopted in October 2021 under the "Climate Change Act " (2008). This Act required the UK Government to set and achieve legally binding targets for reducing greenhouse gas emissions. The Court found that the Net Zero strategy did not comply with Articles 13 and 14 of the Kyoto Protocol. "Climate Change Act ". The claimants obtained a declaratory judgment requiring the UK Secretary of State to file a new report. As well as being a finding of illegality in relation to government strategy, this case shows that climate legislation can be enforced through the court system if the government fails to meet its legal obligations.
III. The Italian "Giudizio Universale" case
The Italian share "Giudizio Universale is still in progress, Filippo P. Fantozzi proposes to look at the general philosophy of the case at the origin of the legal action, the facts that justify this action, the legal basis of the action and its possible developments.
This action, filed with the Civil Court of Rome in June 2021, was conducted as part of an awareness campaign known as the "universal judgment and"affair of the century". It is part of a worldwide trend towards climate litigation. The action was launched by over two hundred claimants, including Italian residents, children and environmental protection associations.
The dispute concerns the State's structural failure to reduce greenhouse gas emissions in Italy, due to a virtually non-existent commitment to public policies adapted to the climate crisis. The action argues that this failure to act leads to the violation of numerous human rights. Finally, Filippo P. Fantozzi points out that, pending a ruling by the Civil Court of Rome, this action is an opportunity to raise awareness of the need to hold the government to account for its climate inaction.
[1] High Court of Administrative Justice, Friends of the Earth Limited, ClienteEarth, Good Law Project and Joanna Wheatley v. Secretary Of State For Business Energy and Industrial Strategy, no. CO/126/2022, CO/163/2022, CO/199/2022, 18 July 2022.
[2] Supreme Court of the United States, West Virginia et al. v. Environmental Protection Agency (EPA) et al, No. 20-1530, 30 June 2022
[3] Supreme Court of the United States, Massachusetts v. EPA549 U.S. 497, 2 April 2007
Session 4 of the "Ecological urgency in the courtroom" series of seminars organised by the ANR PROCLIMEX programme and the ALCOM programme. Expertise in the service of climate justice
21 November 2022
Organised by the Professor of Public Law Christel COURNILThis seminar brought together four speakers: Kari De PryckAssistant Professor, University of Geneva, Institute of Environmental Sciences (GEDT) ; Julien BétailleLecturer in Public Law, Toulouse 1 Capitole University, Member of the Institut Universitaire de France; Yann Robiou du PontClimate policy analyst, advisor on climate litigation ; Véronique BoilletAssociate Professor of Public Law, University of Lausanne.
I. From the role of the IPCC, from the depoliticisation of climate issues to a strategic instrument at the service of climate justice?
Established in 1988 under the auspices of UNEP and the WMO, Kari De Pryck points out that the IPCC is presented as a scientific and intergovernmental organisation. Conceived as an institutional innovation, the IPCC produced its first report in 1990, which laid the foundations for the UNFCCC. The IPCC produces full reports and their summaries for decision-makers (RIS), which are very precisely negotiated by the IPCC member states. Unlike the full reports written by the authors, the RIS represent the consensus between the member states on the state of knowledge on climate change. If nothing can be added without the agreement of the authors, the Member States may decide to delete certain statements. The RIS are not binding but are perceived by the Member States as having a certain binding force. They present a depoliticised and decontextualised understanding of climate change because they must reflect all the interests of the States.
Kari De Pryck sets out to show that the IPCC presents the climate problem primarily as a global, scientific and technical problem, whereas in fact it is more of a political, social and economic problem, with major inequalities at stake. Changes have nevertheless been made in this direction with the arrival of members from the social sciences on the IPCC. The IPCC's conclusions feature prominently in the climate dispute[1], in which the organisation is often presented as reflecting the international scientific consensus. However, the IPCC's reports are the product of compromises, consensus and expert judgements that may change depending on the experts called upon to produce the reports.
II. Legal research in the 6th IPCC report
Interested by the space newly dedicated to a legal section in the 6th report, Julien Bétaille has attempted to examine the IPCC's use of legal research. The aim is to understand how the IPCC uses and synthesises legal research on climate. To this end, Julien Bétaille presents and analyses his database of twenty-eight studies cited by the IPCC. While most of the studies are published in scientific journals, the majority do not include a lawyer among their authors. The vast majority are empirical and not doctrinal studies, with purely descriptive statistics. There also seems to be a balance between studies based on qualitative data and those based on quantitative data. Finally, Julien Bétaille criticises the lack of a systematic approach in doctrinal legal studies.
III. The manufacture of scientific evidence in the courtroom: a look back at how the fairest reduction trajectories are presented to judges
In his contribution, Yann Robiou du Pont looks firstly at the way in which ambition and equity are quantified in the UNFCCC's demands on States to reduce greenhouse gas emissions. Secondly, he looks at the way in which sharing the effort to reduce greenhouse gas emissions is used by the courts.
The IPCC studies corroborate various principles of fairness, and the fair quantification of emission reductions by country by 2030 is analysed according to various fairness criteria. In particular, Yann Robiou du Pont points out that if each country aimed, in the way that suits him best, to limit global warming to 2°C as set out in the Paris Agreement, this global temperature would be exceeded at world level. This finding was used to justify a direct appeal to the European Court of Human Rights, on the basis of a precise argument: a multiplication of national decisions requiring States to do the minimum to limit global warming would not be sufficient to consider that States are sharing equitably the effort to reduce greenhouse gas emissions.
IV. Producing a doxa: the amicus curiae of academics in the Swiss trial in Strasbourg
Véronique Boillet presented the application of the association Aînées pour le climat[2] which, in their capacity as elderly women particularly affected by global warming, enjoined the Swiss government to take all necessary measures within their sphere of competence to reduce greenhouse gas emissions. Dismissed at first and second instance, the applicants appealed to the ECtHR, supported by several interventions. In her study, Véronique Boillet observes six types of intervention before the ECtHR:
- States in disputes between one of their nationals and another Contracting State;
- States when their legal system will be affected by the outcome of a case;
- interventions by other international institutions with competence in the field in question;
- interventions by national human rights institutions ;
- interventions by NGOs ;
- university interventions.
Véronique Boillet also observes a diversity of subjects for interventions, namely: the contribution of statistical elements and scientific data, the presentation of relevant international law in the light of the interpretations of other international courts, the presentation of the case law of the ECtHR and the presentation of relevant comparative and national law. In principle, the Court welcomes and takes into consideration these contributions with a view to promoting dialogue with the various players in order to enrich its deliberations. Véronique Boillet and Evelyne Schmid's intervention before the ECtHR in the Aînées pour le climat case was prompted by the lack of convincing legal argument from the Swiss judicial authorities. The aim of this intervention was to put the Swiss judgments into context. It focused on issues particularly linked to the arguments put forward by the national authorities (victim status, the specific nature of the Swiss political system and its semi-direct democracy).
[1] Application lodged with the European Court of Human Rights on 26 November 2020, in the case of Association Aînées pour la protection du climat v. Switzerland
[2] District Court of The Hague, Urgenda Foundation v The Netherlands, 24 June 2015
Session 3 of the "L'urgence écologique au prétoire" series of seminars organised by the ANR PROCLIMEX programme and the ALCOM programme. Children and young plaintiffs in court to tackle the ecological emergency
30 September 2022
Organised by the Professor of Public Law Christel COURNILThis seminar brought together six speakers: Sébastien JodoinAssociate Professor, McGill University, Paul Mougeolle Doctoral student and legal expert for Notre affaire à tous and Global Legal Action Network, Clémentine Baldon Lawyer, Hélène Leleu Lawyer, Laure-Marine Vioujard diplomatic coordinator World's Youth for Climate Justice (WYCJ) and Émilie GaillardLecturer in Private Law, Sciences Po Rennes, Normandy Chair for Peace.
I. Trends and judicial obstacles in youth-led climate trials
In his presentation, Associate Professor Sébastien Jodoin reviews the causes of children's particular vulnerability to climate change, looking at factors of exposure, sensitivity and capacity to adapt. Through a collection and analysis of climate policies around the world, the speaker presents the groups that are recognised as most vulnerable by governments. To date, 74 countries recognise that children are particularly vulnerable to climate change. In this context, thirty-one domestic climate cases around the world, including two international cases, focus on the rights of young people.
Three types of case can be identified, firstly cases in which the claimants plead insufficient efforts to reduce carbon emissions and meet climate commitments and the resulting threat to children's rights. The second type of case relates to insufficient efforts to implement mitigation and adaptation measures leading to the violation of children's rights. In a third type of case, the young claimants argue for judicial review of specific regulatory approvals that are expected to have dramatic climate impacts. Two types of argument are put forward by the plaintiffs: the inadequacy of efforts to reduce greenhouse gas emissions[1] and the State's fiduciary duty to protect the rights of young people in the face of climate change and the right to a stable atmosphere[2]. Associate Professor Sébastien Jodoin also presents the results of climate cases focusing on the rights of young people, with the majority of cases dismissed for lack of justiciability and standing.
II. The trial of the "young Portuguese" before the European Court of Human Rights
Doctoral student and legal scholar Paul Mougeolle looks back at the case of the young Portuguese against thirty-three States before the ECtHR, its innovative nature in a number of respects and the procedural steps involved since the appeal was lodged on 7 September 2020. In their appeal, the claimants allege damage to their health caused by heat peaks, forest fires, pollution and allergens, as well as climate anxiety, which is expected to worsen as a result of climate change. He looks back at the challenges surrounding the lodging of this appeal, namely the condition of exhaustion of domestic remedies, extraterritorial jurisdiction and the applicability of the articles of the European Convention on Human Rights.
III. Young people's fight against the Energy Charter Treaty in Strasbourg
In her speech, lawyer Clémentine Baldon presents the Energy Charter Treaty signed in Strasbourg in 1994, under which some fifty European countries allow foreign investors in their own countries to take their signatory countries to international arbitration tribunals if the value of their investment is affected by national law. Clémentine Baldon highlights the very powerful investor-state dispute settlement (ISDS) mechanism, which is an exception to ordinary law and allows foreign investors to bypass national courts and take their dispute directly to arbitrators. These mechanisms do not offer the same standards of protection of the rule of law (protection against conflicts of interest, independence of judges, double jeopardy, transparency, etc.). The ECT is seen as an obstacle to the energy transition because of the broad interpretation of the concept of foreign investor and the standards of protection, the considerable amount of compensation and the deterrent effect on States. A number of young claimants have therefore taken legal action against a number of States to force them to remove certain obstacles to the energy transition contained in the ECT.
Much of the legal reasoning in the action overlaps with that of the young Portuguese claim, in particular the legal basis for the claim under Articles 2, 8, 14 and 3 of the ECHR. The claimants also seek to demonstrate that the ECT stands in the way of the energy transition, which is essential if the objectives of the Paris Agreement are to be achieved. They are therefore calling for the Member States to withdraw from the ECT or for a genuine reform of the Treaty. The action faces the same challenges as the Duarte Agostino case, but has the unique feature of pitting the European Convention on Human Rights against another treaty and demonstrating the " chilling effect "[3].
IV. Presentation of the environmental action brought by parents of schoolchildren in the Drôme region and the "Parents pour la planète" (Parents for the Planet) collective.
Lawyer Hélène Leleu looks back at the local action brought by a group of forty-three parents for climate inaction, before the Lyon Administrative Court. The plaintiffs are parents of children living in the Drôme who are particularly concerned about their children's health and future in the face of climate change. They brought an action against the Prefect of the Auvergne-Rhône-Alpes Region and his departments, arguing that they were not sufficiently implementing the powers conferred on them by law, and that they were therefore responsible for a particularly damaging failure to monitor environmental protection and the measures taken in response to climate change. The purpose of the action is to demonstrate, area by area, through the consequences of climate change, how the State is not taking sufficient action to deal with it. The claimants point to the specific local features of their action, in a department particularly affected by climate change (water management, forest fires, etc.).
V. The activism of young people for a demande
As part of their presentation, Laure-Marine Vioujard and Émilie Gaillard look back at the campaign run between 2011 and 2012 by the State of Palau to defend the interests and environment of Pacific States vulnerable to climate change. In 2019, inspired by this initiative, a coalition of law students from the University of the South Pacific set up a campaign to bring the issue of climate justice before the International Court of Justice (ICJ). The group of students convinced the leaders of the island state of Vanuatu to present a draft resolution to the members of the United Nations General Assembly to bring the issue of climate responsibility before the ICJ. They are now working to gather international support.
Émilie Gaillard sets out to describe the metamorphosis of human rights towards a fundamentalization of the right to the environment and an overcoming of the binary thinking between individual and collective rights. Finally, she highlights the interest and effectiveness of campaigns against climate change led by young plaintiffs.
[1] A phenomenon understood as the discouragement of the exercise of rights by the threat of a legal sanction.
[2] District Court of The Hague, Urgenda Foundation v The Netherlands, 24 June 2015
[3] U.S. District Court for the District of Oregon, Kelsey Cascadia Rose Juliana et al. v. U.S. Government, 12 August 2015
Session 2 of the "Ecological urgency in the courtroom" series of seminars organised by the ANR PROCLIMEX programme and the ALCOM programme. Metamorphosis of responsibilities: multinational companies in the courtroom
31 May 2022
Organised by Professor Christel COURNILThis seminar brought together six speakers: Luca D'Ambrosio, Lawyer and Associate Researcher at the Institut de recherche en droit international et européen de la Sorbonne ; Paul MougeolleD. student in law and NAAT jurist; Clémentine BaldonLawyer; Clara GonzalezGreenpeace legal expert; Jean-Marc BonnevilleCNRS Research Director, Matthias PetelDoctor of Law, Harvard Law School, Université catholique de Louvain, FIDH.
I. The vigilance of private companies and the contribution of the Shell trial
In his talk, researcher Luca D'Ambrosio looks back at the notion of vigilance that characterises some of the climate litigation brought against companies in Europe[1]. This litigation is part of the liability-prevention approach, as opposed to traditional liability-reparation. There is also information liability, requiring companies to communicate and report on some of their actions.
In its judgment handed down on 26 May 2021, the Court of The Hague issued an injunction against parent company Royal Dutch Shell, requiring it to reduce the annual volume of CO2 emissions from its activities and products by -45% in 2030 compared with 2019 levels and by -100% in 2050. This is the first ruling to recognise the legal obligation of a private company to reduce its CO2 emissions in order to achieve the objectives of the Paris Agreement. The main basis for this ruling is the national civil obligation of due diligence interpreted in the light of hard law and soft law and the theory of the indirect horizontalisation of human rights. These obligations concern the direct activities of companies, but also the risks of harm arising from business relationships. This is a progressive solution in that it tends to go beyond the territorial and legal boundaries of liability. The decision has thus made it possible to introduce a new rule of liability into the legal universe through an approach called ex antewhich is characterised by the enhancement of prevention obligations.
II. The case of Total in the light of the Shell affair
As part of his presentation on the Total case[2], doctoral student and legal scholar Paul Mougeolle looks back at the background to the Urgenda case (2015)[3], which gave rise to the global climate justice movement. In particular, the case established the notion of duty of care subsequently used in the Milieudefensie v. Shell (2021)[4]. In France, action was taken in 2020 against the multinational Total, a major player in the development of fossil fuels. Paul Mougeolle traces the background to the lobbying carried out by the company, which played a decisive role in national and international regulations on global warming. While the action against Royal Dutch Shell was based on the principle of due diligence, the action against Total was based on the duty of care adopted by the legislature in 2017[5]. This requires parent companies to set up a due diligence plan in which they must identify and prevent serious human rights and environmental abuses (risk mapping, implementation of appropriate measures to mitigate risks and prevent serious abuses, etc.).
It also relies on the obligation of environmental vigilance deduced from articles 1 and 2 of the Charter of the Environment by the Constitutional Council and on article 1252 of the Civil Code, which enshrines ecological damage. The plaintiff associations emphasise the inadequacy of short-term actions, the company's lack of pro-activity, the inaccuracy of its communication and the possibility of the company circumventing its objectives.
III. LClimate greenwashing: the case against Total
Lawyer Clémentine Baldon and Greenpeace legal expert Clara Gonzalez present the summons filed against Total on 2 March 2022 by Greenpeace France, Friends of the Earth and Notre Affaire à Tous for misleading commercial practices relating to the rebranding of TotalEnergie on 29 May 2021. As part of this campaign, the company is expressing its commitment to energy transition in order to contribute to the sustainable development of the planet in the face of the climate challenge, with explicit reference to the concept of carbon neutrality by 2050.
The action taken by the associations against Total was aimed at three main allegations: the display of the ambition to be carbon neutral by 2050, the climatic impact of fossil gas and the climatic impact of biofuels. The appeal was based on consumer law. Unlike the Shell case, it is not the company's strategies that are being targeted, but the way they are communicated to consumers through misleading commercial practices[6]. This includes "environmental claims"[7], commonly known as "greenwashing". The aim of the action is to show that Total's campaign to promote carbon neutrality by 2050 constitutes a misleading commercial practice that misappropriates the non-malleable scientific concept of limiting global warming to 1.5°C, as enshrined in the Paris Agreement.
IV. Lhe complaint lodged by a group of scientists with the Jury de Déontologie Publicitaire (Advertising Standards Jury)
Advertising is subject to legislative and ethical control (professional advertising regulatory authority). In his speech, Jean-Marc Bonneville, Director of Research at the CNRS, retraced the history of a complaint before the Jury de Déontologie Publicitaire: the "zero emissions" complaint.
V. Presentation of #SeeYouInCourt actions
Matthias Petel, a doctoral student in law, presents the #SeeYouInCourt project around the world, tracing the actions in Chile, Colombia and Ecuador. The project highlights the interdependence between human rights and the fight against climate change from a climate justice perspective. The speaker also returned to the lessons learned from the failure of the legal action in Ecuador. He stressed the need to make the link between traditional scientific language and indigenous cultural references, the risk of strong pressure from the multinational to divide the indigenous community and obtain a stay of proceedings, and the need to understand the divisions within indigenous communities and the importance of extra-judicial action.e.
[1] Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market [...]; Article L. 121-1 et seq. of the French Consumer Code.
[2] LAW no. 2021-1104 of 22 August 2021 on combating climate change and strengthening resilience to its effects
[3] Court judicial of Nanterre, ord. JME, Notre Affaire à Tous and others v/ SE Total, 11 February 2021, no. 20/00915
[4] District Court of The Hague, 24 June 2015, Urgenda Foundation v. The Netherlands.
[5] The Hague Tribunal, Milieudefensie et al. v/ RoyalDutch Shell26 May 2021
[6] LAW no. 2017-399 of 27 March 2017 on the duty of care of parent companies and ordering companies.
[7] The Hague Tribunal, Milieudefensie et al. v/ RoyalDutch Shell26 May 2021
Session no. 1 in the series of seminars entitled "L'urgence écologique au prétoire" ("The ecological emergency in the courtroom") organised by the ANR PROCLIMEX programme and the ALCOM programme. "Justice for the living", The making of a trial on State responsibility for biodiversity
On 12 April 2022, the PROCLIMEX research project launched a series of seminars entitled "L'urgence écologique au prétoire" ("The ecological emergency in the courtroom"). The seminar series began with a first session entitled: "Justice for the living - The making of a trial on State responsibility for biodiversity". Organised by public law professor Christel COURNIL, this seminar was conducted in the unprecedented context of an action brought against the French State for failure to fulfil its obligations to protect biodiversity. The appeal was lodged on 10 January 2022 by five environmental protection associations with the Paris Administrative Court. To discuss the "biodiversity appeal", the session brought together four speakers in the case: Chloé Gerbier, lawyer, member of Notre affaire à tous and co-president of the Terres de Luttes association, Dorian Guinard, lecturer in public law at Sciences Po Grenoble, Barbara Berardi, head of the Pesticides Unit at the Pollinis association and Julia Thibord, environmental lawyer.
I. The making of the "biodiversity" claim after the climate litigation
In her talk, legal expert Chloé Gerbier looks back at a central question that has been driving environmental protection associations: how can the State be held liable for protecting biodiversity? At issue: the many derogations from the principle of protecting biodiversity, particularly in the context of the use of plant protection products. The "biodiversity appeal" lodged on 10 January 2022 is part of the same strategy as the "Affaire du siècle" appeal[1]; it follows on from an earlier request made to the government to comply with its obligations to protect biodiversity. As part of their action, the associations are seeking compensation in kind and a ban on the marketing of an identified list of products. Ultimately, they are calling on the public authorities to review the entire process for authorising the marketing of plant protection products. Based on the "Affaire du siècle" model, the appeal is a hybrid between an appeal for misuse of power and an appeal to the full court.
II. Putting the claim into context
In his contribution, Dorian Guinard, lecturer in public law, begins by outlining the state of science regarding the threat to a number of species. Of the eight and a half million species listed, around one million are threatened with extinction, a phenomenon that is occurring on very small and unprecedented timescales. Secondly, Dorian Guinard looks at the legalisation of scientific data through the "biodiversity appeal" filed in January 2022. In this appeal, it is argued that the State has failed to protect biodiversity because it has not put in place the necessary conditions for assessing the dangerousness of a number of products. On the one hand, the assessments carried out as part of the marketing authorisations for these products are often carried out on so-called "umbrella" species, which do not correspond to the majority of species exposed to these products in nature. Furthermore, these assessments do not take into account so-called "cocktail" effects, i.e. the combination of other substances with the authorised active substance to form the product, or the effects of the products on each other. Based on the observation of such shortcomings in the protocol tests, the associations tend in a way to produce a legal qualification of the state of science on the subject, in a manner similar to the Affaire du siècle.
III. The effects of pesticides on living organisms: the case of pollinators
Barbara Berardi, Head of the Pesticides Unit at the Pollinis association, spoke of "the paradoxes of a protective regulation that does not protect", highlighting the need to develop the regulatory framework for risk assessment, particularly with regard to pollinators. It points out that plant protection products are, in principle, subject to strict regulation under European Union law through Regulation (EC) 1107/2009 of 21 October 2009[2] concerning the placing of plant protection products on the market. This regulation calls for an in-depth environmental risk assessment before a substance is authorised in the European Union, in order to achieve a high level of protection for health and the environment in the face of the "unacceptable effects" of pesticides. However, the difficulty of determining an "unacceptable effect" means that the objectives defined by the legislation are too general to be directly applicable. The association is therefore calling for them to be broken down into specific protection objectives included in the European guidelines.
IV. Legal arguments brought before the administrative judge
In her speech, environmental lawyer Julia Thibord outlined the conditions under which the State can be held liable for fault before an administrative court, in the same way as in the "Affaire du siècle" case. This liability action is conditional on the State demonstrating that it has failed to meet its obligations to assess the effects of plant protection products[3], that it has caused ecological damage[4] and that there is a causal link between the fault and the damage. The appeal lodged on 10 January 2022 was based on three grounds. The first is based on the failure of the procedures for assessing and authorising plant protection products. The second is based on the faulty implementation of policies to reduce the use and effects of plant protection products, in particular the failure to respect the trajectory that the State set itself through the Ecophyto plans, similar to the trajectory of the national low-carbon strategy of the Affair of the Century. The third ground of appeal is based on the State's failure to comply with its domestic and European obligations in the field of water[5].
This seminar provided an opportunity to understand the conditions and issues surrounding the formation of an action for State liability in relation to the protection of biodiversity. Part of a series of strategies already used in the Affaire du siècle litigation, the "Biodiversity recourse of 10 January 2022 particularly reflects the judicialization of scientific expertise in the field of biodiversity.
[1] TA Paris, 3 February 2021, Association Oxfam France and others, n° 1904967
[2] Regulation No 1107/2009 of 21/10/09 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC.
[3] Regulation No 1107/2009 of 21/10/09 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC. ; CJEU, 1er Oct. 2019, Case C-616/17, Procureur de la République v Blaise and Others; Art. 191§2, TFEU; Art. 5, Charte de l'environnement; Art. L253-1, Code rural et de la pêche maritime.
[4] LOI n° 2016-1087 du 8 août 2016 pour la reconquête de la biodiversité, de la nature et des paysages; TA Paris, 3 février 2021, Association Oxfam France and others, n° 1904967
[5] Directive 2000/60/EC of 23/10/00 establishing a framework for Community action in the field of water policy. Art.L.210-1, Environment Code