The law as a lever in the service of the climate

Climate change. A complex subject associated with a multitude of idiosyncrasies, the first and most important of which is based on the following postulate: “The climate is a public good.” At least that is the view of Béatrice Parance, associate professor of private law at Vincennes-Saint-Denis University. And as a public good, the climate must be protected. The organization of this protection does not escape its share of stowaways, those who do not do their part to reduce their greenhouse gas emissions, but who will benefit from the efforts of others. At the top and often featured: the company. What is its place in the fight against global warming? What can be done to frame it? Questions addressed at the Summer University conference hosted by Paris Place de Droit on Friday, July 8, on climate, finance and law. The roundtable brought together by lawyer Émilie Vasseur (Mayer Brown), Thierry Philipponnat from the AMF, Béatrice Parance, Helman le Pas de Sécheval from Veolia Environnement and Stéphanie Smatt Pinelli from Orano was an opportunity to explore the legal levers that can be used in the service of the issue of the century.

Very low standards

The law plays an essential role in imposing a normative framework on companies. The latter were initially required to report on the environmental and social impact of their activities in a management report in accordance with the law of 15 May 2001 on new economic regulations. It was not an obligation to do, but an obligation to transparency. The law of March 27, 2017 on the duty of vigilance has taken a first step towards the emergence of this obligation to act by requiring large companies to anticipate all risks of serious damage to human rights, the environment and social problems that may arise in their value chain. Two years later, it was the turn of the Pacte Act to oblige companies to take social and environmental issues into account. If these two texts represent an evolution in the company’s responsibility towards climate change, they are: “are of a very low, even symbolic, normativity, according to Beatrice Parance. However, they can become the breeding ground for something much stronger. Such as the future European directive on vigilance and corporate social responsibility. The text, which is currently under discussion in the European Parliament and the Council of the European Union, would make it possible to lay the first foundations of the duty of vigilance in Europe and to remedy certain inaccuracies in French law.

Right to liability

If the normative framework is essential, the actions before the judge are just as important. Whether against states or against corporations, climate-related lawsuits are on the rise. They play an important role in legal claims. How ? Due to the international influence of business. When a state tackles a climate issue, the solution often has an impact across national borders. The famous Deal of the Centurywhich aims to recognize the culpable failure of the French state in climate matters is, for example, based on the Dutch judgment Emergencythe first instance where a state’s obligation to meet global greenhouse gas reduction targets has been established.

But what about corporate social responsibility? How to act for an NGO if there is no interest in acting? The answer would be based on the right to liability of Béatrice Parance, who takes the example of the dispute between Shell in the Netherlands: “In this case, the question was, did the parent company of the oil company behave according to the standards of conduct that a responsible company should have given its weight in the market? The answer is no. In terms of the right to responsibility.” And although it is a first instance decision, several countries have adopted this solution to bring lawsuits against their multinationals, starting with France where a case is pending against TotalEnergies.

Anaelle Demolin

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