Friends of the Earth and others v. Prefect of Bouches-du-Rhône and Total
France
The Court restricts Total’s palm oil consumption in its French biorefinery, citing violations of environmental and energy laws. While allowing the refinery to operate, the Court mandates a strict palm oil cap and calls for a new climate impact study.
Credit: Total au Tribunal
Casebook Info
In 2018, Total acquired a permit for a palm oil-based biorefinery in France, encountering opposition from environmental groups citing decision-making flaws and breaches of environmental and energy laws. They argued that the refinery’s reliance on palm oil imports, associated with deforestation and pollution, conflicted with commitments on biofuel use, sustainability, and climate action, violating multiple articles of the Energy Code and the French Environmental Charter.
The Court determined the permit violated the Environmental Code by not explicitly stipulating a reduction in palm oil usage, potentially allowing the refinery to consume 450,000 tons annually. Consequently, it partially invalidated the permit, imposing a strict palm oil usage limit and mandating a new climate impact study. While acknowledging palm oil’s environmental risks, the Court deferred judgment on the potential breach of the Environmental Charter pending further clarity on the refinery’s effects. Regarding Energy Code violations, the Court clarified that specific administrative decisions tied to environmental authorizations were exempt from Energy Code compliance. The case’s conclusion depends on the completion or reassessment of the climate impact study, although the refinery has been and remains operational since 2019.
Year Filed
2018
Year of Most Recent Ruling
2021
Year of Final Ruling
2021
Jurisdiction
France
Court Name
Administrative Court of Marseille
Plaintiff(s)
Friends of the Earth and others
Ruling On
Merits or Procedure
Respondent(s)
Prefect of Bouches-du-Rhône and Total
In 2018, the Prefect of Bouches-du-Rhône granted Total, one of the seven biggest oil companies, permission to continue operating a palm oil refinery in Châteauneuf-les-Martigues and Martigues. The La Mède refinery, would produce around 500,000 metric tons of biofuels annually. However, the refinery relied heavily on palm oil imports from countries like Indonesia and Malaysia. There, the palm oil industry notoriously contributes to large-scale deforestation, and air, water, and soil pollution, all of which exacerbate the climate crisis.
Six environmental organizations, including Friends of the Earth France (Plaintiffs), contested the permit’s issuance, alleging defects in the decision-making process. They voiced concerns about the decision authority’s lack of independence and its failure to adhere to commitments regarding biofuel use, financial capacity, sustainability, transparency, and actions against climate change. Moreover, the Plaintiffs asserted that the state violated European Union directives and provisions within France’s Energy Code, Environmental Code, and Environmental Charter—an essential constitutional law safeguarding the right to a healthy environment (R2HE). Consequently, the Plaintiffs petitioned the Court to revoke Total’s authorization to operate the refinery, citing the failure to implement precautionary and prevention principles. Additionally, they demanded that the state pay a fine of 3,000 euros for neglecting its administrative duties.
The Court ruled that the Prefect had violated the Environmental Code by permitting Total’s biorefinery to evade required reductions in biofuels. The initial permit allowed Total to bypass reductions if it could demonstrate reaching the lowest feasible level, omitting explicit demands for reductions in palm oil use, permitting an annual consumption of 450,000 tons. To rectify this, the Court partially invalidated the permit, enforcing a stringent annual cap on palm oil and its derivatives in the refinery’s operations.
Moreover, the Court found the Prefect’s decision lacked sufficient grounding in climate change science. Consequently, the Court mandated a fresh study to assess the biorefinery’s climate impact. While awaiting the study’s outcomes, the Court deferred judgment on the alleged violation of the Environmental Charter. Regarding Energy Code claims, the Court concluded the Prefect had not transgressed. Despite the ongoing study and its impending results, the La Mède biorefinery remains operational.
450,000 tons
The amount of palm oil that the refineries would have been able to use under the initial permit granted by the Prefect.
French Environmental Charter
The constitutional law which enshrines R2HE in French law.
2009/28/EC and 2015/1513/EU
European Union directives incorporated into and now binding under French law, which cover renewable energy and fuel sources.
Plaintiff Strategies & Court Good Practices
Using an established domestic body of law
The Plaintiffs approached the Court, alleging multiple violations by the Defendants of domestic provisions and obligations. Specifically, they pointed to Article L. 661-1 et seq. of the Energy Code, which incorporates Directives 2009/28/EC and 2015/1513/EU into French law. The Plaintiffs argued various breaches of the Code: allowing palm oil use among the plant’s raw materials (Article L. 661-2 et seq.), the absence of defined sustainability criteria for the raw material-to-biofuel process (Article L. 661-3), and the failure to ensure compliance of European Union-sourced agricultural biomass with outlined good practice regulations in the Common Agricultural Policy (Article L. 661-6). While the Court acknowledged the Defendant’s failure to meet biofuel reduction requirements, it did not issue directives on other claims made by the Defendant that were beyond the administrative decisions mandated by the Energy Code.
The Plaintiffs successfully argued that the Defendants had failed to fulfill their obligations under the French Environmental Charter, a constitutional law safeguarding R2HE and mandating the application of precautionary and preventative measures. As the Prefect had not adhered to these principles as required by law, the Plaintiffs urged the Court to annul Total’s operation permits. The Court agreed that the Prefect lacked sufficient information to make an informed decision regarding the refinery’s climate impact. While acknowledging palm oil’s potential environmental harm, the specific effects of the La Mède refinery remained unclear. Consequently, it remained uncertain whether the Prefect had disregarded the prevention principle outlined in the Energy Charter to safeguard the environment. The Court opted to await further information before concluding whether the Environmental Charter had been breached.
Take Aways
The case highlights the mishandling of procedures regarding industrial activities affecting public health and the environment (R2HE). Despite not fully annulling Total’s permit, the case underscores the Courts’ ability to devise alternative remedies when statutory obligations are only partially fulfilled. The result aimed to halt regular operations and production that might lead to unacceptable environmental harm and risks to R2HE until the Defendant concluded further impact studies.
Terms
Element
Healthy Biodiversity and Ecosystems
R2HE includes healthy biodiversity and ecosystems among its substantive elements. This internationally recognized right encompasses the entitlement of individuals and communities to live in a balanced environment that supports diverse and thriving ecosystems. It necessitates safeguarding and preserving ecological diversity, ensuring the resilience and well-being of ecosystems and promoting the sustainability of natural habitats for present and future generations. Additionally, this right entails the protection of various species, habitats and ecological processes essential to the maintenance of a healthy and functional environment.
Element
Pollution
R2HE encompasses protection against pollution through its substantive elements – particularly the elements of Non-Toxic Environments, Clean Air, Safe and Sufficient Water and Healthy Biodiversity and Ecosystems – because pollution in excess of a certain standard may compromise the “healthy environment” to which all individuals have a right. Individuals are entitled to live in environments that are devoid of various forms of harmful pollution, including harmful contaminants, emissions and pollutants. Consequently, R2HE emphasizes the need for clean air, water, soil and surroundings that are free from contaminants detrimental to human health and well-being. It stresses the obligation of states to take action to prevent pollution. ‘Pollution’ may refer to air, water, marine, noise and/or chemical pollution.
Element
Safe Climate
R2HE includes a safe climate among its substantive elements. A safe climate is one where the adverse effects of climate change are mitigated to safeguard fundamental human rights, such as the rights to life, health, food, water, housing and R2HE. While there isn’t a universally recognized and legally binding "right to a safe climate," there is a growing movement advocating for the recognition of such a right.
Strategy
Using an established domestic body of law
Invoking well-established national laws, norms and/or legal principles in support of arguments related to R2HE. Where R2HE is present in a country’s constitution, the constitution will serve as the primary authoritative source for the right. Other, secondary sources of established domestic law commonly include statutory law and requirements governing public participation and/or the assessment of environmental risks. Environmental principles enshrined in domestic sources of law – for example, the precautionary principle – may also be emphasized to further the protection of R2HE.
Good Practices
Methods for ensuring baseline protections
Courts have employed various strategies, mechanisms and approaches to establish fundamental environmental safeguards, minimum standards and/or quality levels which are necessary to guarantee R2HE. These approaches aim to ensure a basic level of protection for individuals, communities and/or the environment. Further, courts have developed various methods to assess the appropriateness of government and corporate action relative to the baseline environmental standards. These methods can vary widely in form and across jurisdictions, but may take the form of a presumption in favor of the environment, the examination of long-term consequences or the application of environmental principles like that of non-regression.
Good Practices
Providing remedies
Provision of remedies is the process by which courts, after finding that a legal right has been violated or harmed, offer or provide a resolution or solution to address the harm or injustice suffered by the aggrieved party. Appropriate and effective judicial remedies play a key role in ensuring that R2HE materially protects individuals and all aspects of the environment. Remedies can vary widely in number, specificity, urgency and stringency, and those variations bear closely on whether a given remedy adequately redresses the original harm. Frequent remedies include protection and restoration measures, compensation and the creation of compliance or implementation mechanisms.
Precautionary Principle
This environmental law principle provides that, where there exists a risk of serious and/or irreversible harm, scientific uncertainty about the extent of the harm or about the exact consequences of a particular action or process does not justify failing to implement measures to combat associated risks of environmental degradation or destruction. In other words, in the face of scientific uncertainty, authorities should still take measures to address environmental threats.
Prevention Principle
This environmental law principle provides that states and other actors must take meaningful steps to avoid environmental harms before they occur. In other words, if there is a tangible risk of environmental harm that is imminent and demands an emergency response, authorities are obliged to implement the necessary measures before damage is caused to the environment.
