Climate Change Litigation Reaches France

Building on the Hague Court of Appeals decision of October 9, 2018, which ordered the Dutch government to take more effective actions to reduce its greenhouse gas emissions, French non-governmental organizations (NGOs) likewise intend to hold the French state liable for its alleged failure to effectively combat climate change.

As a preliminary step, on December 18, 2018, several NGOs served a 40-page request to the French government, requesting the adoption of corrective measures to reduce France's contribution to climate change and seeking relief for both the moral and environmental damage resulting from the alleged failure of the French government to effectively combat climate change.

The NGOs' legal claim relies on the possibility under French administrative law to seek the state's liability for failure to adequately fulfill its obligations, in particular in the event of health or environmental risk. In their request, the NGOs argue that: (i) the French government has failed to comply with its general duty to prevent climate change, which allegedly arises from various sources of law; and (ii) the French government is unlikely to meet the compulsory targets set out by European or national authorities with regard to greenhouse gas emissions reduction, development of renewable energy, and increase of energy efficiency.

If the government does not provide a positive answer to the NGOs within a two-month delay, the NGOs will be entitled to formally challenge such decision (or lack thereof) before the administrative courts, resulting in one of the first climate change litigations in France, further to a similar claim filed on January 23, 2019, by the mayor of the city of Grande-Synthe in the North of France. In addition to these legal actions, the NGOs have initiated an online petition supporting the contemplated climate litigation, termed "the Case of the Century." While it is not possible to predict the ruling of French courts on this matter, such climate litigation may induce the French government to adopt more stringent regulations regarding climate change.

Juliana v. United States – Kids' Climate Change Suit Avoids Government's Attempt at Summary Judgment, but Case Ultimately Stayed

This fall and winter have seen a number of developments in Juliana v. United States, the kids' climate change lawsuit filed in the U.S. District Court for the District of Oregon. The lawsuit, brought by 21 children, accuses the federal government of action and inaction that allegedly worsens climate change-related dangers and thereby fails to protect future generations.

On October 15, 2018, U.S. District Judge Ann Aiken dealt the federal government another blow when she refused to grant the government summary judgment and judgment on the pleadings and refused to certify those rulings for interlocutory appeal. In her order, Judge Aiken held that the plaintiffs have viable legal claims under the Fifth Amendment and Public Trust Doctrine. Reiterating her November 10, 2016, order, she said: "Where a complaint alleges knowing governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet's ecosystem, it states a claim for a due process violation. To hold otherwise would be to say that the Constitution affords no protection against a government's knowing decision to poison the air its citizens breathe or the water its citizens drink." The opinion frequently noted how the government's arguments had not changed much since she denied its motion to dismiss in November 2016.

On October 19, however, Chief Justice John Roberts of the U.S. Supreme Court issued an administrative stay of the case. The U.S. Department of Justice ("DOJ") had petitioned the Supreme Court the previous day for a writ of mandamus directing Judge Aiken to dismiss the lawsuit. DOJ also lodged a petition to stay the case while the Supreme Court considered the mandamus position, as well as an administrative stay. The Supreme Court had previously rejected an attempt by the government to stay the case in July 2018, calling it premature. Following the Supreme Court's issuance of the administrative stay, the original case trial date of October 29 was shelved.

On November 2, the Supreme Court lifted the stay, stating that "[a]t this time … the government's petition for a writ of mandamus does not have a 'fair prospect' of success in this court because adequate relief may be available in the United States Court of Appeals for the Ninth Circuit…. When mandamus relief is available in the court of appeals, pursuit of that option is ordinarily required." The government had asked the Ninth Circuit for an emergency stay so it could pursue its Supreme Court mandamus petition. The Ninth Circuit declared that motion moot in a brief order and requested that "in the future, the government promptly inform this court of developments affecting its pending motions."

On November 6, the DOJ put forth a renewed petition urging the Ninth Circuit to stay the case and end the suit. The government's new mandamus petition largely rested on arguments it had consistently raised throughout the case, including that the suit unconstitutionally encroaches on legislative and executive power. On November 8, the Ninth Circuit stayed the trial in the case while it considered the government's petition for writ of mandamus. The Ninth Circuit gave Judge Aiken 15 days to file a response to the petition, if desired, and urged her to "promptly resolve" the government's pending motions to have her reconsider her refusals to certify for interlocutory appeal her 2016 rejection of the government's dismissal motion and her October 15 refusal to grant the government summary judgment and judgment on the pleadings. On November 21, Judge Aiken stayed the case entirely so it could be reviewed by the Ninth Circuit.

On December 5, the plaintiffs filed a motion for reconsideration, asking Judge Aiken to revise her order staying the case and to allow pretrial proceedings, including discovery, to move forward. The motion argued that the child plaintiffs were in continued danger of being harmed by climate change the longer the case was postponed and cited the recently released national climate assessment by the government that underlined the severe climate change risks the country faces, saying that the Trump administration's actions to promote fossil fuels are accelerating the potential harms. The government countered on December 17, saying the plaintiffs had not justified the need for a restart and urged Judge Aiken to maintain the stay.

On January 8, 2019, Judge Aiken ruled against the plaintiffs' motion for reconsideration. Future rulings on this case at both the district and appellate levels will no doubt be closely monitored by other parties seeking to bring similar climate change lawsuits.