Ecological loss in climate litigation
Recent news in France has clarified the scope of ecological loss in climate litigation. On June 29, 2023, the Paris Administrative Court (Tribunal administratif de Paris) issued a landmark decision in Justice pour le Vivant case, condemning the French State for failing to meet its pesticide reduction targets.[1] The Court characterized the ecological loss resulting of “widespread, diffuse, chronic, and lasting contamination” of water and soil due to pesticide use and order the French State to take measures to compensate this damage by June 30, 2024. Echoing the Affaire du Siècle case,[2] the administrative judge adopted the same definition of ecological loss as provided in Article 1247 of the Civil Code, referring to a “non-negligible harm to the elements or functions of ecosystems or the collective benefits derived by man from the environment”, to characterize the French State's failure in combating climate change.
This convergence between civil and administrative liability regimes concerning environmental harm places the notion of ecological loss at the heart of climate litigation.
The rise of the concept of ecological loss in France
Although the notion of ecological loss was initially introduced by the civil courts, it was soon enshrined by the French legislator in the Civil Code, before being adopted by the administrative courts.
Ecological loss was first recognized in France following the Erika oil spill disaster which affected the coast of Brittany in 1999. This incident caused major pollution of the French Atlantic coastline, raising awareness of the extent of the damage caused to the environment. In a decision issued on January 16, 2008, the Paris Criminal Tribunal (Tribunal correctionnel de Paris) ordered those responsible for the pollution to pay compensation for the “harm caused to the environment”, going beyond material and moral damages.[3] This decision was subsequently upheld by the Paris Court of Appeals (Cour d’appel de Paris) on March 30, 2010, which clarified and established the notion of “ecological loss”.[4] The French Court of Cassation (Cour de Cassation) validated the Court of Appeal's reasoning in a decision dated September 25, 2012. The Court defined ecological loss as “direct or indirect harm caused to the environment, without affecting a specific human interest but affecting a legitimate collective interest”.[5]
The French legislator introduced the concept of ecological loss into the French Civil Code through the Law of August 8, 2016, for the restoration of biodiversity, nature, and landscapes. This law brought substantial modifications to the Civil Code to better address environmental issues by introducing articles 1246 to 1252, specifically dedicated to the question of ecological loss reparation. However, liability conditions for the author of ecological loss fall under common law, notably Article 1240 of the Civil Code.
At the same time, the legislature transposed the European Directive 2004/35 of April 21, 2004, concerning environmental harm prevention and reparation, through the Law of August 1, 2008. This law incorporated a regime of administrative liability into articles L. 160-1 et seq. of the Environmental Code. However, this regime is limited to environmental damage, excluding the reparation of subjective consequences of environmental damage, which corresponds to the notion of ecological loss.
Through a series of recent decisions, the administrative judge has extended the special regime inserted into the Civil Code concerning ecological loss to the administrative liability regime.
On February 3, 2021, the Paris Administrative Court issued a judgment in the Affaire du siècle case[6] recognizing the existence of ecological loss due to climate change, notably in applying articles 1246 et seq. of the French Civil Code. It found that the French government was liable for the partial failure to meet its targets for reducing greenhouse gas emissions. However, the court rejected the plaintiffs’ claims for pecuniary compensation for ecological loss.
Subsequently, on July 1, 2021[7] and May 10, 2023[8], the French State Council (Conseil d’Etat) ordered the Prime Minister and the ministries in charge of ecological transition to take the necessary measures to reduce greenhouse gas emissions in line with the commitments made under the Paris Agreement. These decisions were made in the Commune de Grande-Synthe case, which gave rise to several important decisions. On July 1st, 2021, the French State Council issued an injunction against the French government to reduce the emissions of greenhouse gases by 40% before 2030 compared to 1990 levels. On May 10, 2023, the French State Council ordered the State to take further measures by June 30, 2024, and to submit a report by December 31, 2023, on the measures taken to achieve the target set in 2021.
The recent judgment issued by the Paris Administrative Court in the Justice pour le Vivant case[9] is in line with this caselaw. The administrative judge ordered the French government to take appropriate measures to compensate the ecological loss caused by the contamination and to pay a symbolic one-euro compensation for the moral loss suffered by the ONGs, plaintiffs in the case.
The compensation of ecological damage in France
The question of compensation of ecological loss is one of the cornerstones of climate litigation.
Article 1246 of the French Civil Code provides that “any person liable for ecological loss is required to compensate for it”. Article 1247 specifies that compensable ecological loss corresponds to “a non-negligible harm to the elements or functions of ecosystems or the collective benefits derived by man from the environment”. Considering that these articles of the French Civil Code institute a derogatory regime, the importance of the harm is a central element. Thus, only significant harm to the environment caused by certain activities may lead to the application of this regime. The expression “non-negligible harm” will have to be interpreted by the judge.
Under Article 1248 of the French Civil Code, any person with standing and an interest in the matter, such as the State, local authorities, public establishments, and environmental protection associations, can claim compensation.
Under the first paragraph of Article 1249 of the French Civil Code, compensation for ecological loss must, in principle, be primarily restitution in kind. This means that concrete measures must be taken to restore the damaged environment. If this is not possible or insufficient, the judge may order the person responsible to pay damages under paragraphs 2 and 3 of Article 1249 of the Civil Code. Compensation will be used to repair the environmental harm under the “polluter pays” principle set out in articles L. 610-1 et seq. of the Environmental Code. In assessing the damages, the judge considers any compensatory measures already taken.
Gradually, the French Court of Cassation and State Council developed the rules applicable to compensation for ecological loss. Several rulings by the French Court of Cassation have confirmed their right to use expert appraisal to quantify the damage recognized.[10]
In some cases, predating the 2008 ecological loss laws the Courts had already granted damages. For example, in the Erika case, the company responsible for the oil spill was ordered to pay civil damages for pollution of the marine environment and coastline. Similarly, in the Braconniers des Calanques case,[11] on June 29, 2021, the Aix-en-Provence Court of Appeal (Cour d’appel d’Aix-en-Provence) ordered the poachers to pay damages for ecological loss resulting from the removal of large quantities of sea urchins, groupers and fish from protected areas closed to fishing.
In the Affaire du Siècle case, the Paris Administrative Court rejected the claim for monetary compensation for ecological loss. It emphasized that reparation should primarily be restitution in kind and that damages would only be awarded if reparation measures were impossible or insufficient.
However, the ONGs, plaintiffs in the case Affaire du Siècle, filed a new request on June 14, 2023. They are asking the administrative judge to order the State to pay a financial penalty of 1.1 billion euros, corresponding to the 9 semesters delay, to compel it to take[MD1] effective action on the matter. The assessment of the ecological loss will be at the heart of the debate, and if the judge grants this request, he will have to determine the appropriate damages based on assessment methods such as the Quinet method, also known as the value of climate action.[12]
Stimulated by the introduction of the notion of “duty of vigilance” (devoir de vigilance) arising from Law no. 2017-399 of March 27, 2017, numerous cases similar to the Affaire du Siècle have been initiated against private companies. Indeed, this law requires companies that meet certain thresholds to set up a “vigilance plan” (plan de vigilance), provided by Article L.225-102-4 of the French Commercial Code. The plan must describe the “reasonable vigilance measures suitable for identifying risks and preventing serious violations towards human rights and fundamental freedoms, the health and safety of individuals as well as the environment, resulting from the activities of the company and those of the companies it controls”, as well as its usual subcontractors and suppliers.
The stakes of these disputes are high. Indeed, if a breach of the obligations imposed by this law is established, the perpetrator is held liable and obliged to “compensate for the damage that compliance with these obligations would have prevented”.[13]
The field of compensation is quite vast and will undoubtedly give rise to a large number of litigations.
To date, at least ten French companies are already involved in cases on this basis, however no sanctions have yet been imposed. To exemplify, in the Total Energies case, the Paris Judiciary Tribunal (Tribunal judiciaire de Paris) issued a ruling on the inadmissibility of NGOs' claims while at the same time pointing out, through an in-depth analysis, that the law on the duty of vigilance employs vague concepts, making it difficult for judges to apply it.[14]
Conclusion
In conclusion, ecological loss plays an essential role in climate litigation in France. Recent court rulings recognized the ecological loss caused by climate change and called into question the liability of the players involved. This helps to raise awareness of the urgent need to protect the environment. However, the question of financial compensation for ecological loss remains to be clarified. Climate litigation and the use of ecological loss as a legal argument are helping to highlight the serious consequences of climate change on the environment, and to encourage stakeholders to act more responsibly in terms of environmental protection.
[1] Paris Administrative Court, June 29, 2023, no. 2200534/4-1, Justice pour le vivant
[2] Paris Administrative Court, February 3, 2021 and October 14, 2021, no. 1904967, 1904968, 1904972, 1904976/4-1, Affaire du siècle
[3] Paris Criminal Tribunal, June 16, 2008, no. 9934895010, Erika
[4] Paris Court of Appeal, Pôle 4, 11e chamber, March 30, 2010, no. 08/02278, Erika
[5] French Court of Cassation, crim., September 25, 2012, no. 10-82.938, Erika
[6] Paris administrative Court, February 3, 2021, no. 1904967, 1904968, 1904972, 1904976/4-1, Affaire du siècle
[7] French State Council, July 1est, 2021, no. 427301, Commune de Grande-Synthe et autres
[8] French State Council, May 10, 2023, no. 467982, Commune de Grande-Synthe et autres
[9] Paris administrative Court, June 29, 2023, no. 2200534/4-1, Justice pour le vivant
[10] French Court of Cassation crim., November 13, 2013, no. 12-84.430 ; French Court of Cassation, crim., March 22, 2016, no. 13-87.650
[11] Aix-en-Provence Court of Appeal, June 29, 2021, no. 20/01931, Braconniers des Calanques
[12] “L'affaire du Siècle : 4 ans de procédures pour que l'Etat répond à l'urgence climatique”, Press Kit, June 23, 2023, accessed July 18, 2023
[13] Article L225-102-5 of the French Commercial Code
[14] Paris Judiciary Tribunal, February 28, 2023, no. 22/53942, Total Energies ; Paris Judiciary Tribunal, February 28, 2023, no. 22/53943, TotalEnergies. See also Paris Judiciary Tribunal, June 1set, 2023, no.22/07100, Suez Groupe ; Paris Judiciary Tribunal, July 6, 2023, no. 22/03403, Total Energies