The pandemic and the environment: legal developments and prospects
By: Pierre David, Research Leader for French Environmental Law for Econogy Project Translated by: Noemi Amelynck, Head of Research for Econogy Project
In his speech on the 12th of March 2020, the French President of the Republic, Emmanuel Macron, expressed: “Tomorrow, we will have to learn the lessons of the moments that we go through, question the developmental model in which our world has been engaged in for decades and which reveals its faults in broad daylight”.1 To say the least, the pandemic has provided a time of reflection.
In order to analyse our “developmental model”, referred to by the President, we have to examine our relationship with the environment and sustainable development. This was made clear when, after a few weeks of stay at home orders, the first climate analyses on the consequences of these orders were published. It is therefore not due as much to the pandemic, but rather the law that this reflection was made possible. However, what did we get out of this reflection? What can still be learned from it?
It is impossible to wholly summarise these reflections as the areas hit by the COVID-19 crisis are numerous and the experiences diverse. Nevertheless, at the political and legal level, it is now possible to make some analyses. Without claiming to be exhaustive, we can report on some advances in favour of environmental protection that have emerged during the crisis, and highlight certain legal perspectives2 in the same direction.
I. During the crisis: developments in favour of environmental protection
As outlined above, the pandemic, or rather the law during the pandemic, has made it possible to expand the social and political awareness of the inadequacy of our societal model in the face of current environmental issues. We can also legitimately ask ourselves whether this awareness has had positive legal repercussions on areas concerning climate change.
Greater social and political awareness of our relationship with the environment
“Ecology has won over the entire political spectrum”.3 It is no longer the prerogative of certain parties and those who qualify as “climate skeptics” are becoming more and more marginalized, and even singled out.
The pandemic was an opportunity to break away from an anthropocentric and utilitarian vision of the environment around us and of the world in which we live today. For example, today it is becoming more difficult to understand the term “natural resources” without a pejorative connotation which is synonymous with the exploitation of nature by humans. Perhaps the anthropocentrist approach to our relationship with the environment remains too familiar; however, this is changing. Nevertheless, this change is not always very successful, as shown by a somewhat ignored Citizen’s Convention for the Climate. In a way, this can translate to the inability or even the refusal of politicians to respond to a social demand, which, at the same time, feeds the phenomena of eco-anxiety.4
This, however, should not obscure the fact that this awareness has had repercussions in law. While it is true that some of these repercussions may seem quite hypothetical and result from mere coincidences of the moment, but this is not the case for all of them.
During the crisis, we observed the emergence of judicial decisions favouring better protection of the environment and strengthening the action of public authorities in the sphere of sustainable development. Without really knowing whether these decisions were influenced by the crisis5, it should at least be noted that they were made more visible. This can be demonstrated by the judgement rendered by the Administrative Tribunal of Paris on February 3, 2021 in which they recognized the “ecological damage linked to climate change” and the “partial deficiency” of the French state in this responsibility.6 Without minimising its importance, beyond this decision, which remains that of a court of first instance, we can relate it to other cases of these tendencies.
In July 2020, the Council of State ordered the government to act to improve air quality in several metropolitan areas7, so that it complies with the European directive on the quality of air.8 Additionally, the same court ordered the state to prove its actions in the climate area.9 It should be noted that appeals pursuing this type of objective are mostly filed by associations10 and local authorities. This shows that society and its stakeholders do not hesitate to use justice as a lever for action in favour of environmental protection and the fight against climate change.
The Constitutional Council has also had the opportunity to expand its case law in this area. It recognized the protection of the environment as a “common heritage of human beings”11 as an objective of Constitutional value of which the legislator must therefore take into account when adopting laws12, and considered it to be in conformity with Article 1247 of the Constitution of the Civil Code affirming the principle of “ecological damage”.13
The month of August 2021, in what is still hoped to be a period marking the beginning of the decline in the spread of COVID-19, saw the enactment of the so-called “climate and resilience” law. This became an opportunity to take up all the proposals made by the Citizen’s Convention and gave this green impulse to the “day after”. This provides a set of scattered provisions, most of them validated by the Constitutional Council14, among which we can find: the establishment of a duty of vigilance for certain companies; the display, on certain products, of their environmental impact; the prohibition of certain advertisements indirectly promoting fossil fuels; the abolition of heated terraces; the establishment of a vegetarian menu per week for public school catering; or the creation of an offense of “endangering and serious and lasting harm to the environment”.
We can also recall that a constitutional revision project was tabled on January 20th, 2021, and that it plans to edit Article 1 of the Constitution to ensure that the French Republic “guarantees the preservation of the environment and biological diversity and the fight against climate change”. This is a “symbolically rich”15 addition which, actually, would add nothing to the law due to the existence of the Environmental Charter (a text of constitutional value) except for the notion of “the fight against climate change”.16
These advances, however, of which we leave the reader to critique them, are not sufficient for a perfectly effective national ecology given the scale of the current challenges. So from a legal standpoint, what do we see on the horizon? Is it up to the law to settle the climate issue if at all possible?
II. Post-COVID legal prospects in favour of environmental protection
There are many solutions that the law can provide in the face of climate change. In this regard, the agenda of opportunities to legally strengthen climate action has some interesting deadlines. However, it remains necessary, as has been said, to ask the question on whether it is the duty of the law and only the law on which climate action should be based on.
Law as an instrument for combating climate change and for the protection of the environment
If the courts are called upon for action and the public authorities summoned by society to act on it, it is because they have the legal means to implement measures capable of protecting the environment. There are numerous proposals and legal possibilities in this area ranging from strengthening the “status of early whistleblowers and giving them a bigger platform and protection”17 to the establishment of a crime of ecocide through the idea of “giving a price to nature in order to better protect it”.18 Among these possibilities, finances and funding is the most important point. The law, through politics, must give itself the means to direct finances (local, national or international) towards more environmentally responsible projects. It is in this way that the European Parliament, by resolution, called on the European Central Bank “to reflect its commitment to the implementation of the Paris Agreement”.19 It is undoubtedly through such measures that we will more quickly materialise our reflections on our “developmental model”.
As for judicial action, even though there are a multitude of texts at the international judicial level to demonstrate innovation, or even imagination, the fact remains that national legislative mechanisms are not used enough. This is the case with the law on ecological damage of August 8th, 2016, on which few decisions are based.20 Although jurisdictions can innovate in interesting ways, as was discussed above21, they can also refuse to innovate. For example, the Constitutional Council recently refused to recognize the principle of non-regression in environmental matters22, thus preventing a “ratchet mechanism” of legislation for the protection of the environment and the fight against climate change. We must therefore keep in mind that having the means to act does not necessarily mean seizing the opportunity. This can be for various reasons which are sometimes well-founded, but also sometimes more questionable.
Finally, let us note that the opportunity to act in favour of the protection of the environment and the fight against climate change on a legal level is based on a few deadlines. On November 2nd, 2021, a bill arrives for a second reading at the Senate to reduce the environmental impact of digitisation23; from October 31st to November 12th, the COP26 is being held in Glasgow; at the start of 2022, the administrative courts must once again rule on the compliance of government action with the air quality directive (Directive 2008/50/EC); and last but not least, France will take over the rotating presidency of the Council of the European Union for the first six months of 2022. In its presidency, the executive will have an opportunity to act on an environmental plan, to create momentum, and to transmit this to the twenty-seven EU Member States.
Until now, we have outlined what the law can offer and what it cannot. However, basing all the challenges of environmental protection and sustainable development on the law is not realistic.
Should the law settle everything?
It is certainly up to the public authorities to act by setting standards in favour of environmental protection and to the courts to build case laws strengthening this protection, but the law cannot do everything. This is all the more true if we focus on the scale of the global warming phenomenon and the extent of its consequences. Bruno Lasserre asks the following question: “Are issuing standards the best way to manage the crisis?”.24 The use of the term “crisis”, when applied to environmental issues, is questionable insofar as it suggests a temporary episode. However, the impact of humans on the environment is already irreversible, so the question remains interesting.
The idea is not to deny the importance of law, its usefulness and its pragmatism as its role is essential. Its role must not let us believe that a standstill is allowed as it creates “prolonged stagnation”25 while waiting for final results. In ecological matters, collective organisation, technical progress and our attitudes as consumers also have a role to play. Here again, it is illusory to base the entire environmental question on just one of these areas as it is the combination of these spheres that enables efficiency.
If it is true that it is necessary to “integrate the climate into all decision-making”26 and adopt a “strategy of mitigation (acting on the causes) and adaptation (dealing with the consequences)”27, then we must keep in mind that prior to the law, there is behaviour and then the vote.
In conclusion, the health crisis has made it possible to engage in a broader reflection on our lifestyles and consumption, and ultimately question the model of society. Even if we still have difficulties grasping the reality and the extent of our awareness on environmental issues, we are able to see at least some repercussions and probable influences on legal matters. Nevertheless the law appears here, as in other areas, only as a tool and not as an end in itself.
1 Televised discourse on the 12 of March 2020, extrait cited by J. Chevallier in “L’Etat à l’épreuve du coronavirus”, Pouvoirs 2021/2 N. 177, p. 109-120.
2 Term understood in the following sense: “Event or succession of events considered probable or possible”. Synonym of “conjecture” or “possibility” (www.cnrtl.fr). This will not prevent us from talking about events that we are sure will occur since they are on the agenda.
3 E. Laurentin in “L’écologie doit-elle être de rupture?” France Culture, Le Temps du Débat, 16 sept. 2021.
4 For further information, listen to “Le réchauffement climatique doit-il être spectaculaire pour mobiliser?”, France Culture, Le Temps du Debat, 9 August 2021.
5 As law is in part the product of the context, it is all the same to bet that the pandemic played a role in the rendering of these decisions.
6 TA Paris, 3 Feb. 2021, N. 1904967, 1904968, 1904972, 1904976/4-1. The appeal was filed in 2018.
7 CE, 4 August 2020, N. 394254.
8 Directive n. 2008/50/CE of the European Parliament and of the Council on 21 May 2008.
9 CE, 19th November, 2020, n. 427301. In relation to this point, read H. Gali, “Le préjudice et l’environnement”, Recueil Dalloz, 2021, 709.
10 See C. Lavigne, “Le Conseil d’État sceptique face à une relation entre infection par le Covid-19 et pollution aux particules fines”, La Semaine Juridique Administration et Collectivités territoriales, n. 20, 18 May 2020, 2148.
11 Terms used by the Environmental Charter.
12 CC, n. 2019-823 QPC of the 31 January 2020.
13 CC, n. 2020-881 QPC of the 5 February 2021.
14 In relation to this point, see P. Januel, “305 articles pour le climat”, Dalloz Actualité, 6 September 2021. 15 J.P. Derosier, “La révision constitutionnelle sur l’environnement: un parcours semé d’embûches”, Le Club des Juristes (Blog), 8 Feb. 2021.
16 Ibid 15.
17 M. Torre-Schaub, “Prévenir pour mieux guérir”, Énergie – Environnement – Infrastructures, n. 7, July 2020, study 13.
18 “Faut-il donner un prix à la nature pour la protéger?” France Culture, Le Temps du Débat, 9 Sept. 2021.
19 M. Torre-Schaub, “Prévenir pour mieux guérir”, ibid 17.
20 Read H. Gali, “Le préjudice et l’environnement”, Recueil Dalloz, 2021, 709.
21 See also Crim, 17 Dec 2019, n. 198085 : Recognition of damage from an environmental protection association does not require proven damage to the natural environment. Cited by H. Gali, Ibid 20.
22 CC, 10 Dec 2020, n. 2020-89. Cited by J.P. Derosier, ibid 15. This refusal can also be explained by the fact that in the absence of a higher standard than the law, of which the legislator does, it can also undo. 23 S. Mobile, “Une proposition de loi pour réduire l’impact environnemental des usages numériques” Le Club des Juristes (Blog), 29 Jan 2021.
24 B. Lasserre, “Les états d’urgence: comment en sort-on?” Discours de clôture du cycle de conférences, 16 Juin 2021 (available on the website of the State Council).