Climate change litigation – Have the French taken the lead, or are the Dutch still ahead?

October 27, 2021 | Blog

On 14 October 2021, the Paris administrative court ordered the French government to undo the consequences of its failure to stick to its own climate-change targets. Actual measures must now be put in place to curb greenhouse gas emissions. The government has been given until 31 December 2022 to repair the damage caused by overstepping the emissions ceiling set for the first CO2 budget period (2015-2018).

France vs the Netherlands

This landmark ruling follows on an interlocutory decision of 3 February 2021, which turned the screws on the French government a bit tighter already. Have the French now overtaken the Dutch, who moved ahead of the pack with the 2019 Urgenda ruling and the Shell judgment handed down earlier this year? That remains to be seen. Set side by side, climate-related legal actions are a multifarious bunch. No two cases are alike and rulings differ markedly. The French government has been ordered to take considerably specific measures that it should have taken earlier. The Urgenda ruling required the Dutch government to achieve a climate change target by 31 December 2020. That ruling, it follows, has now “run its course”. The Shell judgment, however, has made it clear - for the first time - that companies are as susceptible to legal action as governments. In that regard, the Dutch are ahead of the pack again. It should be noted, though, that the judgment is still under appeal.

So which country is the most ground-breaking?

It is interesting to see which of these countries’ courts issue the most ground-breaking decisions. The grounds on which rulings have been issued vary widely. In the French case, the grounds were found in domestic environmental liability provisions from the Code Civil. In the Dutch Urgenda case, the courts found that the government had failed to properly fulfil certain provisions from the European Convention for the Protection of Human Rights. Lastly, Shell was found to owe Dutch society a duty of care to reduce CO2 emissions and its failure to uphold this duty constituted unlawful conduct. The court held that Shell had to step up its efforts to reduce greenhouse gas emissions, in effect exceeding Shell's own policy targets. In an observation, the court expressly noted that the reduction of greenhouse gas emissions is an obligation that applies equally to all enterprises, regardless of size or branch of industry. While we have to wait for the ruling to stand up on appeal, it can be said that the Dutch courts still hold sway when it comes to forceful rulings against companies and the threat of similar decisions against other enterprises. In view of the Shell ruling, therefore, the Netherlands is still ahead in climate change litigation.

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