There are more and more appeals to the courts to contest the
construction of useless projects or to denounce the inaction of theState in the face of the climate emergency. But this unambitious form of
mobilization quickly finds its limits: environmental law, in its current
form, and high-profile trials are reformist and weak tools. Ultimately,
the law, which is not neutral, remains at the service of capitalism.
---- Environmental law is currently undergoing multiple regressions,
particularly on environmental assessment, environmental authorizations
and protected species, to the point that lawyers are rebelling. Thus, in
2021, the French State was condemned for climate inaction due to
greenhouse gas emissions[1]. Climate justice, as it is presented here,
is based on appeals written by associations that enjoy popular support,
the petition having collected almost 2 million signatures. Since then,
condemnations have followed one another: on air quality[2], on green
algae[3], on pesticide pollution[4]; each time the State is recognized
as responsible and condemned.
Thus, in recent years, a new style of reformism in environmental
struggles has emerged, made up of "strategic" trials led by expert
associations. Without completely denying the weapon of law and the
usefulness of left-wing legal struggles, put forward in particular by
Liora Israël, it must be admitted that these strategic trials in
environmental matters direct energies towards an illusory strategy.
Environmental law is not neutral
In 1924, the Marxist jurist E. V. Pasukanis spoke of the market form of
law. He explained that law is "a historical category that corresponds to
a specific social regime, built on the opposition of private interests".
Thus, law is not a neutral container that can be filled with any
content. This legal form conditions the content and the competence of
those who can decide on it. Its form promotes the production of value
and the exchange of goods, it is linked to the capitalist production
system and allows its reproduction.
In fact, modern environmental law accompanies capitalist production. For
example, in the book The Living and the Revolution, Bram Bücher and
Robert Fletcher denounce accumulation-conservation which, through
various legal mechanisms for environmental protection, allow and
reinforce capitalist and colonial accumulation. In France, this law most
often takes the form of administrative law: decrees on the categories of
classified installations subject to authorization, decrees for the
creation of national parks, prefectural orders for environmental
authorizations, etc. However, administrative law is one of the legal
expressions of the capitalist system according to André Demichel. We can
even say that environmental law became administrativeized after the
Revolution of 1789 to allow the development of capitalist industries.
We can think for example of the decree of 1810 regulating factories and
manufacturing, ancestor of the regulation of classified installations
(factories, farms, etc.). The transition from the law of the Ancien
Régime to modern law marked this desire to make nature productive, as
Jean-Baptiste Fressoz describes in his work. Thus, resorting to
environmental law also means resorting to a tool forged in the flames of
the neoliberal system. It presents itself as a limit to pollution, but
is only a screen intended to make it acceptable by directing attention
elsewhere. From this point of view, for lawyers, the problem is no
longer primarily the capitalist system, it lies rather in the poor
drafting or poor application of environmental law.
Tactical litigation, but not strategic
In terms of victories, "strategic" trials have little impact in France
today. The emblematic climate trials in France since 2021, such as
Grande Synthe and the Affaire du siècle, are largely floundering today.
Even a specialist on the subject like Marta Torre Schaub agrees. As
libertarian communists, these cases raise a question of strategy: while
they can be tactical elements in the contestation of large, useless
projects, they cannot constitute a strategy in themselves. Moreover,
neo-Marxist jurists clearly ask this question: is recourse to law
strategic (see the work of Robert Knox for example)? For them, cause
lawyering[5]is a profoundly liberal activity that only the richest and
most endowed can afford. In addition, the recognition of the
responsibility of States and their condemnation for climate inaction
makes the law play its mystifying role: only States are condemned, while
it is the entire capitalist system that is responsible for pollution.
So strategically, what should we think as a libertarian communist of
these "strategic" trials? First, the commercial form of environmental
law accompanies the development of capitalism. Second, if certain trials
tactically allow work to be slowed down (ZAD, etc.), they constitute a
liberal activity that does not build a social movement. Third, it is
necessary to re-appropriate Environmental Justice as a popular movement
of social struggle, as it was born historically, and not as it is
reinvested by the Climate Justice of lawyers.
Current events increasingly raise this strategic question. This is
currently illustrated by two emblematic cases concerning the A69 and the
Sainte-Soline megabasin. Thus, recently, the administrative court of
Toulouse extended the investigation of the dispute concerning the A69,
effectively allowing the work to continue. A few days later, the
administrative court of appeal of Bordeaux annulled the authorization
relating to several mega-basins already built for harm to protected
species, including that of Sainte-Soline, but this decision still
authorizes the use of water stored by farmers... It is urgent to
organize strong social movements and not rely solely on the law to
remind people of the climate emergency.
Oriane (UCL Grenoble)
Validate
[1]See the website laffairedusiecle.net.
[2]"Air pollution: the Council of State orders the State to pay two
penalty payments of 5 million euros", Council of State, November 24, 2023.
[3]See the court decision "Fight against green algae and ecological
damage resulting from green algae", Administrative Court of Rennes, July
18, 2023.
[4]See the website justicepourlevivant.org.
[5]Can be broadly understood as "lawyers of causes", that is, lawyers
who bring a committed, activist dimension to their work, with the
ambition of social change
https://www.unioncommunistelibertaire.org/?Diversite-des-tactiques-Le-droit-de-l-environnement-sauvera-t-il-la-planete
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