Genuine lucidity or merely survival strategies? Whatever their motivations, companies are increasingly concerned about their societal impact and undoubtedly have a role to play in one of the great challenges of our century: the energy transition.
To discuss this issue and identify how the law is a vector for decarbonization,[1] we brought together François Graux, General Counsel/Deputy General Secretary of the Engie Group, and Vincent Brenot and Astrid Mignon Colombet, partners at August Debouzy. Here's a glimpse of what they had to say on the subject.
The last few years have marked a turning point in the perception of environmental issues. Companies have now made ecological transition and sustainable development imperatives part of their DNA, moving for some from a simple façade of greenwashing[2] or fear of the stick to genuine awareness. For Vincent Brenot, four main factors have contributed to this change. Firstly, companies have realized that the resources that underpin their business activities are not limitless, and that their long-term survival depends on preserving them. They have also become aware of their environmental image, and have made this dimension an integral part of their strategy. Their ecological commitment is also a selection criterion for young talent, who won’t hesitate to turn their backs on companies that are far removed from their values. Finally, more and more investment vehicles (green funds) are now reserved for virtuous players. Other strong signals point to the need for an energy transition. The French government is also being reminded of its responsibilities, as in the "Commune de Grande-Synthe"[3] case, in which the Conseil d'Etat ordered it to reduce its greenhouse gas emissions.
Long before the realization of the need for decarbonization, the law played and continues to play a decisive role as an incentive in a number of ways.
It can set targets for the development of renewable energies, accompanied by deadlines. This can be done without distorting competition, since these targets are imposed on all operators in the same sector.
Specific measures have also been implemented to encourage renewable energy projects. They aim to speed up the permit review process by reducing the time required for appeals or rulings (cf. the "toboggan" procedure).[4]
Energy-saving certificates, another incentive lever, are purely legal creations, rewarding the results of virtuous behavior and thus encouraging companies to adopt them.
Climate litigation, or more precisely, as Astrid Mignon Colombet points out, climate change litigation, no longer only concerns states, but also companies. One of the major innovations is that a party’s civil liability can now be incurred, not as punishment for an act after establishing fault, damage and a causal link between the two, but based on an assessment of its overall strategy in the same way as a state policy. In this type of litigation, the aim is not to punish a company for non-compliance with a standard, but rather for not having taken sufficiently clear energy transition paths. In effect, since the corporate duty of vigilance law of March 2017,[5] multinationals have been required to publish a comprehensive due diligence plan of the risks their business poses to human rights and the environment. If they fail to comply with this duty or the commitments they have made, any person with an interest in taking action can serve them formal notice to comply.
However, we can see that with these climate-related disputes, the role of the judge in the matter is changing: judges are encouraging the parties to engage in dialogue and seek a path towards progress.
[1]Qui, pour rappel, définit l’ensemble des mesures et des techniques permettant de réduire les émissions de dioxyde de carbone. Cf. Transition écologique : une planification pour accélérer la décarbonation des sites industriels
[2]Sur ces procédés de communication et de marketing « donnant une image trompeuse d’écologisation », cf. Laure Teulières, Le greenwashing a permis de faire diversion en se satisfaisant de demi-mesures ou de fausses solutions, Le Monde, juillet 2022. (Re)Découvrez également les 7 pêchés du greenwashing selon Tom Lyon, How corporations use greenwashing to convince you they are battling climate change, The Conversation, mai 2023
[3]À l’initiative de la commune de Grande-Synthe et de plusieurs ONG, l’État français est poursuivi en justice sur la question du réchauffement climatique pour « inaction climatique ». Cf. Muryel Jacque, Climat : le Conseil d’État maintient la pression sur le gouvernement, Les Echos, mai 2023
[4]Cette procédure prévoit que lorsque la juridiction saisie dépasse un certain délai pour statuer, le dossier instruit remonte automatiquement à la juridiction supérieure.
[5]Mathilde Golla, Comment les grandes entreprises s'emparent de leur devoir de vigilance, Les Echos, mai 2023,