Environmental Action: Between Failure, Litigation And Basic Human Rights

A French court has recently decided that local authorities have failed to comply to national and European standards regarding climate change, through a “carence culpable” — a “wrongful failure to act”. Tha case involved a mother and a daughter that claimed that air quality in their city is damaging their health, and unfortunately the same court has not considered necessary to order the defendant to pay damages, in lack of proof of a causality link between damage and failure. In the meantime, another French court decided that the state actually has to pay for the damages inflicted upon workers exposed to asbestos on the basis of a “préjudice d’anxiété” — “injury of anxiety”, as in psychological pressure caused by knowing they were working in improper conditions, exposed to dangerous substances, even though — and I believe this is the most important part — no actual injury has ever occured.

These judicial evolutions, due to the legal system the technically founded modern law in the first half of the XIXth century, are in process of creating a new legal regime concerning environmental law, as its influence is growing on the traditional perspectives of legal mechanisms. And the actual state of the environment asks for it, as climate change ravages more and more communities and vulnerable populations.

The legal action for climate rights began with the Dutch “Urgenda” case, French, American, Australian etc. plaintiffs following suit. Expressed simplistically, their claims involve the failure to act of the defending states in regards of climate action obligations, mainly concerning lowering the levels of emission according to international or national documents. To put things even more simply, countries believed that adopting measures to fight climate change was enough, without actually enforcing them, or at least creating mechanism to insure their enforcement. A view tipically associated with the formalist view of regulation, where the existance of norms – of laws – is enough, where law – or regulating – is a purpose in itself, an not just a means to an end, as it normally should be.

Environmental law and its specific problems, amongst which climate change has already become a majore challenge, has never been understoond by law makersn it has always been seen as a fringe field of regulation, somewhere between hardcore, real, law, and useless speculation. Thus, mose states, epsecially in the European Union, preferred the formal approach: adopting a certain regulation, but never actually taking it seriously.

As a basic principle of the rule of law, the state must be subject to its own regulations, and the courts can enforce them against the state itself. And now, regarding environmental law, courts are starting to put an end to the dominating legal pretense, by holding states liable for wrongful failure to act, as in finding them guilty for not respecting the norms that they adopted themselves. Which, in certain cases, is quite humiliating to the state and the state apparatus, and wrongfully viewed as an attempt to undermine the said rule of law and the balance between powers.

Even though the cases for climate (and, generally, environmental) rights are just at the beginning, a sad conclusion can already be drawn, that is, the states, and the current international system of state cooperation, have lamentably failed in regards to the issue. They have failed to do what they assume to do best: regulate, and by regulating, influencing human behavior, and by influencing human behavior, changing things towards the better. In regards to the environmental issues, this eventual “better” cannot remain a beautiful lie or promise of some politicians or incompetent las makers; it has to take shape the sooner the better, and in some aspects, it should have already been a reality since yesteryear. Because the environment does not work around 4-year mandates; it does not listen to speeches and does not applaud declarations; it does not stop at the state border and, more often than not, cannot be changed through words.

Asking for a legit protection of basic human rights has been interpreted more often than not as an attempt against the political status quo. Or, to put it bluntly, as crimes against the state. Questioning the fundamental policies, questioning the persons responsible for those policies, having courts telling legislatures that they failed their purpose, are but a few accusations thrown towards the people that actually stood for the environment, demanding the authorities to do what they claim to do: protect the population; in case of failure, as proven by the examples noted earlier, all state authority must be held liable, according to the gravity of the damage generated by the said failure to act. No excuses, no exceptions.

Perhaps the law of the future will be a law of balance between various factors, natural and man-made, and not just an instrument to exclusively serve human interest. Perhaps the law of the future will eliminate as much as possible institutionalized incompetence, disguised as rhetorics and control systems. Perhaps, for once, law will defend equity, instead of hypocrisy. Perhaps when faced with the challenge of contributing to the survival of his species, man will choose wisely. For once.

exterminate all rational thought