Monday, May 13, 2024

Essays on Climate Change and Public Law--French Yearbook of Public Law (Issue 1, 2023)










The French Yearbook of Public Law describes itself this way:

The objective of the “French Yearbook of Public Law” is to narrow the gap which has tended to develop between the French and the international debate on public law. The former remains too often isolated from the latter, for various reasons, ranging from the conviction of the French model’s exemplary nature to an insufficient openness of French public lawyers to the international academic language, which English has undoubtedly become nowadays. This has two serious consequences. On the one hand French lawyers might often be unaware of developments in other legal systems, and on the other hand foreign lawyers face serious difficulties to follow French legal developments.
For its first issue the FRPL includes a very intriguing set of essays on Climate Change and Public Law, with a great introduction by Jean-Bernard Auby (Emeritus Public Law Professor, Sciences Po Paris) and Laurent Fonbaustier (Public Law Professor, Université Paris-Saclay).

The Issue may be accessed HERE. The Introductory essay on the Climate Change Sossier and the Table of Contents follow below

 

Contents

General  9

Foreword 11

 

The Future of the French Model of Public Law in Europe

Sabino Cassese 13

 

 Conceptual and Linguistic «Surprises» in Comparative Administrative Law

Jean-Bernard Auby 19

 

Dossier: Climate Change and Public Law 23

 

limate Change and Public Law Dossier: Introduction

Jean-Bernard Auby / Laurent Fonbaustier  25

 

Part I: A Global Approach

The Paris Agreement: A Renewed Form of States’ Commitment?

Sandrine Maljean-Dubois 35

 

European Union law at the time of climate crisis: change through continuity

Emilie Chevalier  51

 

 “Transnational” Climate Change Law A case for reimagining legal reasoning?

Yseult Marique  69

 

Part II: Climate Change in Constitutions

Analysis of constitutional provisions concerning climate change

Laurent Fonbaustier / Juliette Charreire 89

 

Part IIII: Climate Change Litigation

Increasing Climate Litigation: A Global Inventory

Ivano Alogna 101

 

Climate change litigation: efficiency

Christian Huglo / Corinne Lepage 125

 

Climate Change Litigation and Legitimacy of Judges towards a ‘wicked problem’:

Empowerment, Discretion and Prudence

Marta Torre-Schaub 135

 

Could national judges do more? State deficiencies in climate litigations and actions of judges

Laurent Fonbaustier / Renaud Braillet  165

 

Part IV: Cities, States and Climate Change: Between Competition, Conflict and Cooperation

Global climate governance turning translocal

Delphine Misonne 181

 

America’s Climate Change Policy: Federalism in Action

Daniel Esty  193

 

 Local policies on climate change in a centralized State: The Example of France

Camille Mialot  217

 

Part V: Climate Change and Democracy

 Subjective Rights in Relation to Climate Change

Alfredo Fioritto  233

 

Overcoming Short-Termism in Democratic Decision-Making in the Face of Climate Change:

a Public Law Approach

Emmanuel Slautsky  253

 

 The Citizens’ Climate Convention : A new approach to participatory democracy,

and how effective it was in terms of changing public policy?

Delphine Hedary 271

 

Conclusion

Jean-Bernard Auby / Laurent Fonbaustier . 281

 

 *       *       *

Climate Change and Public Law Dossier: 

Introduction
Jean-Bernard Auby and Laurent Fonbaustier
Emeritus Public Law Professor, Sciences Po Paris
Public Law Professor, Université Paris-Saclay
Keywords:
Comparative environmental law, Comparative administrative law,
Climate change litigation, International environmental law
«Man has finally reached a stage where he deserves to disappear» (Cioran, Entretiens)
«Since everything is inside us» (Henri Barbusse, L’enfer)
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I. Framing the issue: why such a question (climate change and public law)?
When we proposed to our contributors to undertake the present dossier, we were well
aware that climate change is not by itself a legal phenomenon. Yet we strongly believe
that the law is nevertheless somewhat relevant in respect of the possible causes of climate
change and might also play a central role in the efforts to mitigate and deal with it in the
long run.
Given that we are public lawyers after all, we naturally focused on the potential of
public law concepts and instruments, where they could be mobilized to support climate
change mitigation and adaptation and conversely, where public law might effectively
hinder such mitigation/adaptation.
A. To what extent is the Law (in general) likely to make a difference?
One might question the ability of the law to mitigate climate change, especially when
one might limit oneself to think that climate change could only be addressed by techni-
cal, economic and/or political solutions. Law might not be the first solution one would
think of given that it is often considered to create confusion, delay action and might pos-
sibly discourage goodwill.
Yet it should be clear, that if we want to bring about change in the long run, it is insuf-
ficient to rely solely on civic virtue and/or trust in science to mitigate climate change. If
we want public authorities, private institutions and citizens to adopt certain behaviours
which are crucial to fight climate change, we ultimately have to make use of sanctioned
rules.
That said, it is worth asking how, and by what means, law is likely to influence social
actions, public or private, that contribute to global warming or, on the contrary, curb it.
This question essentially targets both goals and methods: what the law can achieve and
through which procedures can it bring about change.
To address this question, one has to be aware of the complexity of the system of norms
in both national systems and in the international order. Beyond the law in the organic-
material sense and formal regulations, there is, as is well known, a multitude of norma-
tive instruments that should not be neglected. These include the development of “soft
law”, but also the increasingly present dimension of guidance and planning: environ-
mental law, which is obviously of particular interest to us here abounds in programmes,
schemes, plans, etc.
In short, we must be open to accept that potentially, all forms of legal normativity
could be mobilised to mitigate climate change.
II. What specific reference does Public Law have to this question?
Having said that, the focus of this dossier will nevertheless be on what impact public
law can have on the question of climate change.
We will not dwell on the questions of definition and boundaries that the concept may
raise. We will confine ourselves to admitting that it refers to that part of the law – that
side of the legal coin – which involves public authorities, regardless of the ways in which
their presence is manifested.
This definition incorporates various aspects of public action. It includes situations in
which public authorities are the exclusive actor, in which they impose their choices, but it
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also includes situations in which they co-act with private actors to achieve a public good,
or even the effort to design the latter. In concrete terms, for example, this means that if
in a given context climate action requires the creation of a “common ground” between
public and private actors, the result will be a “public-private” co-production of the public
good. Despite all this, we will not leave the realm of public law as we understand it.
That said, if public law mechanisms can make a contribution to mitigate the causes of
climate change, this will be due to what they convey in terms of going beyond the pri-
vate sphere. In light of the extent of the crisis, we cannot avoid having recourse to public
law to address it.
We will obviously have to ask ourselves - and this will be a major part of the problem -
whether this intense collective work can be accomplished while respecting the rights and
freedoms to which our highly individualistic societies have become accustomed.
III. The ecological impregnation of public law
The history of the ecological impregnation of public law is not easy to describe, yet
certain essential stages can be identified. In theory, we could go way back in time: town
planning regulations of medieval cities were already full of hygiene and sanitation stan-
dards that can be considered pre-ecological. Later on, during the industrialisation, it be-
came evident that the latter might cause major damage: in this respect, a crucial refer-
ence in French law remains until today in the imperial decree of 15 October 1810 “relating
to factories and workshops that spread an unhealthy or unpleasant odour” - as the first
step towards legislation on classified installations.
But it was not until the 1970s that French legislation began to be seen as environmental,
and a Ministry of the Environment was created.
In jurisprudence, after the famous “Ville Nouvelle Est” case (Council of State, 1971) in
which it was found that that in ruling on questions of compulsory purchases judges had to
strike a balance between benefits and inconveniences of the envisaged action, the ruling in
“Sainte-Marie de l’Assomption” (Council of State, 1973) added environmental damage to the
list of inconveniences that should be taken into account in striking the aforesaid balance.
Much later, in the wake of the Kyoto Protocol, climate change would become the
strong banner on the pediment of public environmental law.
At the same time, ecological considerations had been implemented at both “horizon-
tal” – particularly European and national – and “vertical” level. In respect of the latter, it
should be mentioned that general and specific environmental protection requirements
had been implemented throughout the legal system and, more technically, within each
public policy.
It is true that ecological norms are situated on a scale of normativity ranging from rel-
atively weak constraints (“taking into account”) to much more demanding requirements,
potentially coinciding with stronger effectiveness (through compatibility or even strict
conformity).
In addition, public policies which, on the basis of standards classically considered as
“public law”, have an impact on activities traditionally considered private in nature (eg
corporate environmental responsibility) must also be considered.
In fact, it is relatively easy to show that, in their own way, all branches of public law are
increasingly impacted by ecological considerations. The precise impact obviously varies
from country to country and no doubt from continent to continent, but a basic trend has
emerged over the last fifty years.
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As we know, these developments have affected international law as much as national
public law. In the wake of an earlier, relatively stimulating period in public internation-
al law, we have witnessed national laws increasingly taking up environmental problems:
questions of ecological taxation went hand in hand with detailed reflections on environ-
mental criteria in public procurement.
To take just one aspect of administrative law, ever more special administrative poli-
cies, some of which have been in force for a long time already, deal with a particular sec-
tor of the environment (air, waste, water, fauna and flora, protected areas, etc.).
At the same time a systemic change in the attitude of the administration can be wit-
nessed. The administration is starting to take a more comprehensive, rational, and inte-
grated approach to its actions. It adopts an “environment” rather than an “element” ap-
proach, through measures based on coordination and cooperation where possible. In
this context one might mention the French initiative the “basin coordinating prefect”,
who began to do, albeit still insufficiently of course, in the field of water what we would
like to see deployed at various spatial and temporal scales across the territory.
We also understand the extent to which the (admittedly gradual) penetration of sec-
toral and global ecological issues into national public law may shake some of our certain-
ties about the territorial and institutional network to which we are accustomed (it may
be that public law is also caught in this ‘territorial trap’ described by some geographers).
This is all the more so since the French administrative culture and, to put it bluntly, a
certain historical style of institutions and actors (with all due respect to the sociological
approach, of course) is perhaps not ideally suited to the temporality of ecological needs,
which are somewhere between extreme urgency and long, even very long, timeframes.
It should not be forgotten that already in the 1970s far-reaching environmental princi-
ples and objectives, often in the form of constitutional laws, have been established in na-
tional legal systems. This development might well be interpreted as having ‘declaratory’
character, raising (legal) awareness of the consequences of scientific ecology at national,
continental and global level. Ideologically and economically the conditions for interven-
tion by public authorities have been profoundly redefined: the emergence or consolida-
tion of a toolkit inspired by private law, somewhere between tradition and innovation,
whose instruments are linked to contract, liability and property law is actively mobilised
to support public authorities fulfilling its tasks, which seems to require ever more open
competition. These developments are sometimes described too easily as ‘neo-liberalism’.
In this rather complex interplay of ecological and legal elements, for various reasons
which are hard to pinpoint, climate change has taken its own route. It cannot be ruled
out that previous legislation on hazardous activities and the subsequent rather negative
coverage at both European and national level, might have served as a rather bad example
in this too slow move. In France alone, nearly twenty laws over the last thirty years have
either directly or indirectly addressed climate change, either by trying to combat, miti-
gate or by trying to adapt to it.
It can equally not be ruled out that the limited attention given to climate issues so far is
somewhat related to a general confusion between the transition of means and the transition
of ends. We would have to consider alternatives to politicising the profound issues raised by
ecology, potentially limiting oneself to an essentially technological change that would make
it possible to remain within a logic of growth. In this respect, the emissions trading market
and carbon offsetting tools, with their relative effectiveness, deserve to be discussed in detail.
The fact remains that, undeniably, institutionally, materially and procedurally, the
growing attention on ecological issues, most prominently climate change itself, in both
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national and international political discourse can be interpreted as the first sign of a
greening of public law, provided, of course, that we take into account public law’s capac-
ity to resist on the one hand and to process these sensitive issues with a view to reformu-
lating them, on the other.
IV. Situating the issue within the evolution of environmental law
The importance that the climate issue has acquired in environmental law is strangely
proportionate to the ineffectiveness of international and even national or European pol-
icies to combat it.1 The first dimension of the dossier aims to analyse the way in which
climate policies are changing and how their role is increasingly strengthened - moving
away from combating climate change towards mitigating its effects and adapting to it.
France, for example, could be “within the limits” of the Paris Agreement, but given that
France itself only emits between 0.8% and 1.4% of global emissions, irrespective of how
strict French citizens will adhere to the rules in place, France acting in isolation will nev-
er be able to stop a temperature rise to 45°C in Bordeaux in 2050.
The way in which climate issues are dealt with might be somewhat linked to what we
are already witnessing in the field of biodiversity. This is clearly a very complex issue, but
certain ‘stock’ and ‘availability’ logic and fairly quantitative approaches are perhaps at
work in the perception of the overall problems. All this obviously merits careful and spe-
cific study, but the fact remains that environmental law is profoundly affected by climate
and energy issues, which do not exclusively consist of ecological challenges.
V. The papers of this dossier
1°. Part I of the dossier specifically focuses on a global approach of our topic.
a) It starts with Sandrine Maljean-Dubois’ paper on “Climate Change in International
Law: The Paris Agreement: A Renewed Form of States’ Commitment?”. Her main argu-
ment is that:
In a tense and difficult context, the adoption of the Paris Agreement required a great
deal of inventiveness and ingenuity on the part of the negotiators. In order to convince
all States to become parties to it, the form and substance of this new treaty were adjusted
in relation to its “predecessor”, the Kyoto Protocol. At first glance, the Paris Agreement
seems to have been designed to be much more flexible. On closer inspection, however, it
actually represents a relatively balanced compromise between those in favour of a flex-
ible agreement and those in favour of a more binding one. From this point of view, its
form and content mark a certain renewal of the forms of State commitment under in-
ternational law, and even of the control exercised over the implementation of their in-
ternational obligations.
b) Emilie Chevalier describes the considerable effort made by EU law in the direction
of the fight against climate change. She shows it went through institutional adaptations
as well as substantive normative production.
1 The improvement of the situation in France, due to the gross confusion of inventory and footprint, is not really
convincing.
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Then, she stresses that, while using many legal solutions and mechanisms similar to
the ones domestic systems recur to, the specific legal and political context in which the
EU acts determines some peculiarities. In particular, the EU is bound by the principle of
conferral of competences, which may potentially limit its action. Also, the Union’s legal
order is essentially based on a solid procedural basis, which can provide a basis for in-
dividuals to develop ways of monitoring the actions of public authorities. However, the
adequacy of these mechanisms to the challenges of the climate crisis remains a central
issue.
c) Yseult Marique’s paper raises the question: « Transnational » climate change. A case
for reimagining legal reasoning?
She argues that climate change is by its very nature transnational in its causes and effects.
Decisions and choices regarding how to produce goods are taken in one country, then are
implemented in another country, possibly on a different continent building on global sup-
ply chains. Goods are transported all the way to a different country, where they are con-
sumed and then the waste is processed in yet a different country with a risk of pollution for
the air, the ground, or the water. People located in different legal orders are affected by this
process directly and indirectly. In addition, energy is supporting this cycle with its own glob-
al networks; gas emissions are travelling around without knowing any borders.
The profoundly transnational nature of climate change implies that space, distance
and territories, as its key dimensions, need to be included in legal reasoning and legal
imagination so that distant others and distant spaces are internalised in norms, decisions
and behaviour. This means a deep disruption of the legal reasoning.
2°. In Part II, our dossier moves to Climate Change in Constitutions.
Laurent Fonbaustier and Juliette Charreire’s paper provides for an “analysis of consti-
tutional provisions concerning climate change.”
They show that, nowadays, such provisions are all but rare: of today, an estimated 78%
of constitutions have included at least one provision about the environment, i.e., up to
170 constitutions.
They also demonstrate the existence of a “snowball effect”, between constitutional and
international law, which contributes to a certain harmonization of legal systems in what
they dedicate to the climate change issue.
3°. Part III addresses the very timely issue of Climate Change Litigation.
a) Ivano Alogna’s paper, ‘Increasing Climate Litigation: A Global Inventory’, views cli-
mate litigation as an important component part of the current global, regional and lo-
cal governance framework that has emerged to regulate how states respond to climate
change, thanks to lawsuits in which citizens and NGOs challenge the actions or inactions
of local authorities and national governments.
At the same time, climate change-related lawsuits have been filed against private ac-
tors, primarily fossil fuel and cement companies, also referred to as “Carbon Majors” be-
cause they are significant greenhouse gas emitters.
The paper examines this dual perspective – climate change litigation involving gov-
ernments and corporations – by synthesising some notable cases worldwide and propos-
ing a categorisation for this brief inventory.
b) Christian Huglo examines the question of efficiency of climate change litigation at
both international and national level. He points out that, currently, there is no interna-
tional court which would be competent to deal with questions of climate change.
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The situation is quite different at the national level, where climate change litigation
fosters in many countries.
However, the efficiency of national judges’ ‘intervention in climate change is restricted
by the limits of both their legitimacy and their powers.
c) The issue of judges’ legitimacy for adjudicating on climate change is further an-
alyzed in Marta Torre-Schaub’s paper: “Climate Change Litigation and Legitimacy of
Judges towards a ‘wicked problem’. Empowerment, discretion and prudence”.
In the context of French law, the “Affaire du siècle” litigation led the judges to clari-
fy the way they interpret the standard of prudence, which could become a new stan-
dard of behavior for the Public Administration regarding activities related to Climate
Change. Once this path has been mapped out and guided by prevention, it will be possi-
ble for judges in future decisions to establish the ultimate goal of carbon neutrality. We
are still today at the stage of a “small steps” jurisprudence because judges self-restraint in
the name of their “historical prudence and proximity to the Administration” and in the
name of separation of power principles. Accordingly, they always consider that a margin
of appreciation must be left to the Administration.
That being said, a new path has been opened up by administrative judges that can in
the future lead to the establishment of a new “standard” of diligent behavior for the Ad-
ministration. For the time being this evolution is still in a preliminary and even prospec-
tive stage, based on the “duty of prevention”.
d) In their paper, Laurent Fonbaustier and Renaud Braillet raise the question “Could
national judges do more? State deficiencies in climate litigations and actions of judges.
One hundred years after the evocation of a “government of judges”.
The fact is that, in many countries, courts have decided to become rather proactive
when dealing with climate change litigation. In addition to interpreting and applying the
law, it is possible for them to recognize that provisions that seemed to have no legislative
or legal value have a real normative scope, or conversely to set aside acts that appear to
constrain the legislator.
Particular attention should be paid to the decision of the Karlsruhe Court in March
2021. From the constitutional provisions of the Basic Law, the court deduces the exis-
tence of a number of constraints for the legislator and thus decides that it is obliged to
legislate in order to comply with these higher standards: in particular, a duty of protec-
tion also exists towards future generations.
Nevertheless, there remains a significant degree of self-limitation by judges. This is
due to concerns for separation of powers and the desire not to be too aggressive in their
way of adjudicating.
4°. Part IV considers the multilevel dimension of our topic and addresses: “Cities,
States and Climate Change: Between Competition, Conflict and Cooperation”.
a) In “Global climate governance turning translocal”, Delphine Misonne bases her
analysis upon the decentralized orientation of the Paris Agreement.
The latter entrusts the implementation of the global objectives adopted in the context
of the Agreement the state parties.
This confers a very important role to national climate laws.
It also has a further decentralising effect in the sense that local governments and cit-
ies can shape their own policies by making their own decisions on issues that fall within
their remit and by challenging the state when its inertia causes damage that can be felt in
the local community.
b) In his paper on “America’s Climate Change Policy: Federalism in Action”, Daniel
32
Esty shows how the US policy on climate change is influenced by the pluralistic charac-
ter of the US system.
Climate change policy in the United States is driven in part by federal authorities, but
not entirely. State-level and city-level leadership also plays a major role. This multi-layer
governance structure provided a safety net against climate change policy inaction during
the Trump Administration. But this same dynamic makes it very difficult to significantly
redirect policies (especially at the politically driven federal level) – even on issues where
circumstances demand bold new thinking and associated policy reform.
Thus, America’s fundamental legal framework stands as a bulwark against climate
change policy failure, but at the very same time the horizontal and vertical distribution
of power has become an obstacle to the adoption of deep decarbonization strategies and
the transformative policies required to move the United States toward a clean energy
economy and a sustainable future.
c) Camille Mialot’s paper “Local Policies on Climate Change in a Centralized State:
the Case of France” confirms the complexity of the relationship between central policies
and local initiatives, even in a unitary and markedly centralized country like France.
It shows that this relationship is not properly apprehended if the attention is restrict-
ed to the margin of discretion left by central law to local authorities.
Much depends on the type of legal instruments that are allocated to the different lev-
els of power and on the articulation between them.
Camille Mialot also insists on how important it is to combine all forms of encourage-
ment to local climate policies with the common definition of what requires climatic jus-
tice.
5°. Part V addresses the quite sensitive question of “Climate Change and Democracy”.
a) Considering what could be the fate of “Subjective Rights in Relation to Climate
Change”, Alfredo Fioritto reckons that restrictions on some of them are to be expected:
most probably property rights, economic rights, personal rights.
Then, the perspective changes if we start to consider subjective rights as collective val-
ues and not only as individual legal positions. Only by recalling that rights correspond
to duties, that the protection granted to them may concern each member of the com-
munity and that rights belong not only to us but also to future generations, may subjec-
tive rights remain a strong democratic pillar, even in front of the climate change pillar.
b) The agenda proposed by Emmanuel Slautsky is “Overcoming Short-Termism in
Democratic Decision-Making in the Face of Climate Change: a Public Law Approach”.
The capacity of democracies to address the challenge of climate change is debated.
Calls for more technocratic or authoritarian forms of climate governance can be heard.
And nevertheless, Emmanuel Slautsky demonstrates, it is possible to evolve varied insti-
tutional innovation which can make democracies overcome their natural short-termism,
and even do so more efficiently than non-democratic institutions.
Some such institutional answers to the problem of short-termism in the context of
climate change rely on constitutional provisions and constitutional courts. Others in-
clude amendments to electoral rules as to ensure the representation of future genera-
tions in legislative processes. And yet others include requirements for politicians or state
authorities to declare whether and to what extent the measures that they defend or pro-
pose for adoption impact the (climate) interests of future generations.
Another group of solutions can be found in setting up special bodies endowed with a
sufficient degree of independence and a sufficient number of papers so they can influ-
ence policies and recall them to climate adaptation and resilience.
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c) Delphine Hedary describes an experiment in participatory democracy applied to
climate change that took place in 2020-2021: the “convention citoyenne pour le climat”.
She shows that the involved citizens put forward proposals that would likely not have
become law if the citizens would not have been involved. It is not certain that these are
the most effective measures to reduce greenhouse gas emissions as this can hardly be de-
termined in abstract. Yet the measures adopted at least enjoy broad public support due
to the consultations preceding their adoption.
Jean-Bernard Auby
Laurent Fonbaustier
June 2023



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