12: Law and Climate Change in North African Countries: Morocco as a Case Study

The Mediterranean and North Africa are among the areas that are severely affected by climate change. Such climate fluctuation clearly threatens ecosystems and the entire development process. Consequently, Mediterranean and North African countries have been obliged to review environmental protection laws and include climate change as a new dimension. Morocco is one of the most proactive countries in this regard. It has been actively engaged in reviewing its public environmental policies and has successfully incorporated the climate dimension. The country's efforts aim to combat global warming, mitigate climate change, and promote climate adaptation Morocco’s choice of the legal framework comes from the fact that legislation plays an important role to protect the environment, especially with the endless threats brought by climate change.

This chapter assesses the new Moroccan legal texts that address climate change issues. It also analyses the role of public and private actors involved in the process of implementing the legal framework and highlights the factors that are limiting the development of climate litigation in Morocco.

Findings reveal that the implementation of these laws remains a major challenge. They also show that despite Morocco's considerable legislative effort to adapt to climate change and reduce greenhouse gas emissions the legislative system alone cannot succeed in this challenge. To achieve the goal of protecting the environment and addressing climate change requires a society and judiciary that are aware of the challenges at hand and capable of implementing legal texts in all instances.

Introduction

The Mediterranean and North Africa are among the areas that are severely affected by climate change, including reduced rainfall and rising temperatures (with more frequent heat waves) and increased instances of flooding.1 These climate fluctuations clearly threaten ecosystems and the entire development process. Consequently, Mediterranean and North African countries have been obliged to review environmental protection laws and to include climate change as a new dimension.2 Morocco has been a leader among these countries, by reviewing its public environmental policies and incorporating climate change, in order to combat global warming and contribute to climate heat mitigation or adaptation.3

Law No. 99.12 (2014), the Framework Law for a National Charter for Environment and Sustainable Development, is one of Morocco’s most important legal texts on the environment, and is the cornerstone of its climate change public policy.4 Article 1 sets out the objectives and principles, which include promoting actions to mitigate and adapt to climate change and combat desertification. Law 99.12 further requires state actors to incorporate sustainable development into sectorial public policies, and harmonize the national legal framework with international conventions and standards relevant to environmental protection and sustainable development. Pursuant to this framework, Morocco developed a climate change policy in 2014,5 a national greenhouse gas (GHG) inventory system in 2014,6 and a national sustainable development strategy in 2017.7 The climate change policy and sustainable development strategy agree on the need to strengthen the legal and institutional framework to meet the requirements of the United Nations Framework Convention on Climate Change (UNFCC), the Kyoto Protocol, and the Paris Agreement.

However, although Morocco has begun to incorporate climate change into its legal system, climate litigation has not evolved to the degree observed in the Global North, and some African countries such as Nigeria, Kenya and Uganda.8 As far as we know, no climate change disputes have been brought before the Moroccan judiciary. This chapter considers the reasons for the absence of cases relating to climate in Morocco, and whether it is notwithstanding or due to Morocco’s strengthening of its climate change legal and institutional framework.

The IPCC has highlighted the detrimental impacts of climate change on water resources, air and forests in the region9 In this chapter, we accordingly place particular emphasis on how the Moroccan legal system has dealt with climate change in water law and laws dealing with air.10 Our study will necessarily take into account the general provisions of the Framework Law and the Environmental Assessment Law.

Firstly the legal requirements relating to climate change are discussed, before we turn to the institutions entrusted with the enforcement of the provisions. Finally, we turn to the difficulties that prevent the development of climate litigation in Morocco.

Legal texts on climate change

Morocco’s legal system is a constitutional, democratic, parliamentary and social monarchy. It is based on civil law, with Islamic law governing areas like inheritance and family law. The judiciary is divided into three types of courts: general jurisdiction courts, specialized courts, and special courts. The Constitution proclaims the independence of the judiciary from legislative and executive authority.

In theory, Morocco attaches great importance to the protection of the environment, including the section on the legislative handling of climate and its changes. This is reflected in the large number of legal texts dealing with the issue and the number of institutions in charge of the implementation of public climate policies.

The Moroccan legislative system has been very dynamic in recent years in response to the call for a rapid response to the effects of climate change. Morocco is located in one of the regions most vulnerable to adverse climate impacts. Since the early 2000s, the Moroccan legislature has addressed climate risk by developing two types of legislative regulation. The first type is concerned with distinct areas in the field of the environment – there are specific legal texts relating to, among others, water, air and renewable energies. The second type of legislative instrument is more generic texts, addressing fundamental principles of environmental protection, including the need to deal with climate change and its impacts.

Climate-relevant legislation enacted prior to the Framework Law

Morocco made great strides at the beginning of the twenty-first century to renew legal texts related to the environment, which had become obsolete due to technological and industrial development. None of these texts, however, explicitly addressed climate change or facilitated climate litigation. To clarify this, we will briefly discuss the contents of the law related to Environmental Protection and Rehabilitation Law, the law on renewable energies, and the law on air pollution.

At the time of the promulgation of the Environmental Protection and Rehabilitation Law No. 11.03 of 12 May 2003, the Moroccan legislature was the most modern in this area compared with those in other North African countries.11 This Law defines a set of basic principles for the protection of the environment. Although the Law does not contain a chapter on climate change, article 30 relates to the protection of the air from all forms of pollution that contribute to a deterioration in quality, global warming and the weakening of the ozone layer. Article 31 of the same law prohibits the emission into the air of any contaminated substances, especially smoke, dust and toxic, corrosive or radioactive gases, beyond the limits provided for in the legislative and regulatory texts.

In 2010, Morocco promulgated Law No. 13.09 on renewable energies.12 In the preamble of this law, it clearly states that the most important focus of the national energy policy is renewable energies in order to preserve the environment and rely on clean energy techniques to reduce GHG emissions. This legal text plays an important role in environmental protection, by stipulating the preparation of an environmental impact study for the licensing of energy business units. This preventive dimension will minimize the negative impacts of projects on the environment and climate.

Furthermore, article 2 of the law, related to air pollution, stipulates that it aims to regulate the prevention and reduction of emissions of air pollutants that can harm human, animal, soil and climate health. Air is given importance in the legal text because any changes in its physical or chemical properties would cause serious damage to organisms, ecosystems and the environment in general. Regardless of the nature of the emissions in the air, they inevitably affect human beings, the environment and the climate. Article 4 accordingly prohibits the use, release or disposal of any contaminated substances into the air.

Article 12 of this Law states that any individual who has suffered harm to their health or property as a result of the emission, release, or disposal of pollutants into the atmosphere has the right, within 90 days of the damage being assessed, to request the authority to conduct an investigation that must be accompanied by appropriate medical or technical expertise. The results of the investigation and the actions taken are communicated to the requester within 60 days. There are a series of administrative penalties, such as partial or total suspension of the activity in question, and an order can be made for work to be done that reduces the pollution. In the event of its failure to do so, the person responsible for the damage who refused to carry out the work likely to reduce the pollution may be subject to criminal penalties, mainly financial fines.

To prevent air pollution, stimulate the use of renewable energies and rationalize the use of contaminated energies and materials, the Law refers to the possibility of establishing a system of financial stimulus and tax exemptions. Financial assistance and partial or total exemptions from customs and penal duties can be granted too (Art. 23).13

Law 13.03 does not directly address the relationship of air pollution to global warming and climate change. Furthermore, it does not specify the way global warming and climate change should be curtailed, when defined as emissions, projectiles, air quality standards or others. This is evident in all the legislation in force prior to the enactment of the Environment and Sustainable Development Framework Law. The legislature therefore had to intervene in order to harmonize the contents of the air law with Morocco’s international obligations.

Basic principles in the Framework Law

The new approach of the Moroccan legislator with regard to the environment is based on three major principles.14 Firstly, it takes into consideration climate change when planning environmental public policies. Secondly, it ensures the reinforcement of environmental protection measures in order to limit the emission of GHGs. Finally, it maintains that the achievement of these objectives is not only the responsibility of the government, but also of citizens and economic actors.

In this context, Law No. 99.12 (2014), the Framework Law for a National Charter for Environment and Sustainable Development, entrenches the country’s approach to the environment. Article 6 of the law establishes the principle of the nation’s shared ownership of natural resources, ecosystems and historical and cultural heritage. Article 7 adds that legislative and institutional measures are meant to promote sustainable and economical use of water resources and combating pollution of water resources. They are also meant to revise water legislation in order to adapt it to the requirements of sustainable development, to deal with the issues raised by the repercussions of desertification, climate change and air pollution. Indeed, Morocco’s legislature has enacted a new water law that takes into account climate change and sustainable development, as outlined below.15

As part of the legislator’s attempt to raise the level of legal protection of the environment, article 34 of the Framework Law refers to the development of a legal system of environmental liability that includes mechanisms for repairing damage, restoring the situation to the previous situation and compensating for damage to the environment. In addition, article 35 establishes the Environment Police;16 this article aims to strengthen the authority of the relevant departments in the area of prevention, control and inspection.17

Climate-relevant legislation enacted pursuant to the Framework Law

The Moroccan legislature has demonstrated a growing commitment to handling climate change by passing a number of laws pursuant to the Framework Law. These include the Water Law (2016) and the Law of Environmental Assessment (2020). These laws demonstrate the priority given to climate change and promoting sustainable development in Morocco.

Water Law

Pursuant to the Framework Law, in 2016 Morocco enacted a new Water Law. Law 15.36 incorporates climate change at several levels.18 It not only deals with immediate water-related environmental damage, but also incorporates strategic water planning to deal with climate change and its impact on water resources, in addition to creating the governance mechanisms and institutions necessary to implement its content. Article 1 explicitly states that the most important principles of water resources are rational and sustainable use of water, and water planning that takes into account climate change with a view to adapt to it. This aspect is further reinforced in article 2, which emphasizes the incorporation of climate change adaptation into water planning and management at every level.

Environmental Assessment Law

Reflecting the importance of the preventive approach in dealing with environmental issues and enshrining sustainable development, Moroccan law makers recently promulgated Law No. 49.17 on Environmental Assessment.19 This Environmental Assessment Law replaces the Environmental Impact Study Law No. 12.03 of 2003. The Environmental Assessment Law is considered a qualitative leap in the policy of strengthening legal and institutional governance in the field of the environment by expanding the study of the impact on the environment and opening new areas to it.

One of the greatest advantages of this Law is that the state and public institutions must prepare an environmental impact study (EIS) for all strategies, public policies and programmes (article 2). This assessment aims to determine the compatibility of public policies, strategies and programmes with the requirements of environmental protection and sustainable development as referred to in article 27 of the Framework Law. The state is thus obliged to commit itself and other subjects of public law to comply equally with the duties imposed on private people with regard to the proactive protection of the environment.

The Environmental Assessment Law is not limited to this obligation, but explicitly stipulates that strategies, public policies and programmes prepared by the state and public institutions prior to the Law’s entry into force shall be subject to environmental strategic assessment on its interim assessment. Since most public policies are long and medium-term, they are evaluated after a certain period in order to ascertain what has been achieved, and thus provide an opportunity to assess the extent to which the environmental dimension has been evoked.

Since the EIS is of a technical nature and is entrusted to specialized study offices in this area, the Environmental Assessment Law regulates the interaction with these offices: first, through the establishment of a list of offices accredited by the Department, which requires the development of objective criteria for work in this area; second, article 27 allows for sanctions to be given to offices that do not respect these obligations, by preventing the owner of the Office of Studies from carrying out EISs for a period of five years.20

The Law also obliges entrepreneurs to provide environmental consent (article 8) or environmental conformity (article 19). Furthermore, entrepreneurs must prepare a contract book setting out the measures to be taken to mitigate or offset the project’s adverse impacts on the environment, the population and public health, as well as the ways in which such measures are implemented. Thus, the study of the impact on the environment goes from a purely technical document to a contract with legal implications with which the entrepreneur must comply, under the relevant administrative and criminal penalties. The Law contains a detailed set of such penalties – including a suspension order and a series of fines. The organs entrusted with examining and reviewing violations and monitoring the implementation of the obligations contained in the ledgers annexed to the Environmental Approval Decision or the Environmental Conformity Decision are judicial police officers and environmental police inspectors. In contrast to the Environmental Impact Study Law No. 12.03 of 2003, which assigns jury officers appointed by the local public authorities to this task, this exception certainly increases the professional nature of enforcement.

Despite the various advantages of the Environmental Assessment Law, there are points of criticism, particularly with regard to the fact that entrepreneurs must fund the EIS. In this respect, while this Act allows the concerned population to make observations and suggestions on the potential effects of the project on the environment, it does not impose any compulsion with regard to the results of this research. Technical studies undertaken by the concerned offices pose an issue of objectivity, since it is the entrepreneur who selects and pays for the office’s fees. This raises doubts about the impartiality and objectivity of the office, especially because of the difficulty, given its cost, in conducting a counter-expertise study.

The Court of Cassation confirmed this in a case that dealt with the extent to which the EIS of a quarry within a forest was objective. In this case, the entrepreneur was able to obtain a licence for a quarry within a nature reserve based on an EIS. There was no need for substantial technical expertise to ascertain the obvious and possible effects of this activity on the forest. The local authority village council refused to renew the licence because of the damage caused by this activity.21

Institutions charged to react to the impact of climate change

To fulfill all environmental protection requirements in general and climate changes in particular, a range of bodies and institutions mandated to monitor and track the implementation of these provisions were created. These institutions and bodies are committed to ensuring that economic actors and individuals adhere to environmental protection laws in general. Other bodies have a specialized role in dealing with climate change in particular. Institutions involved in this area can be classified as follows: horizontal bodies (Ministries, Economic, Social and Environmental Council, police; judiciary, and so on); and sectorial bodies (Water Basin Agency, National Water and Forestry Agency; High Water and Climate Council, Environmental Police, and so on).

Some of these bodies only play a consultative role, whereas others have decision-making authority.

Consultative bodies

Morocco’s institutional interest in the environment dates back to the 1980s. It first created the National Council for the Conservation of the Environment and then Regional Councils for the Environment in 1980.22 All these councils have a consultative role only. They track studies and propose legislative drafts and regulatory texts related to the environment. They also raise awareness of the importance of preserving the environment and its components. The Economic, Social and Environmental Council is a constitutional institution mandated to prepare studies and proposals to promote sustainable development at all levels.

The new Water Law gives climate change the importance it deserves through its own provisions as well as through the organs it has created. The Supreme Council for Water and Climate (article 78) has been updated and mandated to examine and express its opinion on the general directions of national water and climate policy; in particular, the National Strategy for Improving Knowledge of Climate, its changes and their effects on water resources and the national water programmes. The legislator has also indicated that the Supreme Council has the right to express an opinion on each issue related to water and climate.

The attention to climate is also evident through the membership of the Supreme Council for Water and Climate, chaired by the head of government (article 79), as well as a group of members representing all relevant government bodies in the sector. The Council is open to the participation of civil society through representatives of associations working in the field of water, climate and environment, and representatives of institutions of higher education and scientific research working in the field of water and climate. In addition, it has four distinguished Moroccan experts, with scientific competence and professional experience, specialized in the field of water, environment and climate.

Decision-making bodies

To ensure the alignment of government environmental programmes, it is essential that there is one single body to head a programme or policy. Nevertheless, it can borrow some environmental competencies from other ministries in charge of other government sectors, which intersect in one way or another with the protection of the environment, such as the ministries of the interior, higher education, scientific research, economy and finance, and others.23

To implement public environmental policy, the country has established the necessary reporting bodies with the capacity to take measures to protect the environment and punish environmental offenders. Among these bodies is the National Agency for Water and Forestry, which is primarily responsible for protecting forest, ensuring its development, and managing various forest-related areas and the water basin agencies.

The publication of the Framework Law marked an important turning point in the Moroccan approach towards environmental problems, that is, a shift from a purely therapeutic approach to a preventive proactive approach, with the inclusion of the climate changes dimension in public policies directed at the environment.

In this context, the Environmental Assessment Law has established the National Environmental Assessment Commission, which is entrusted with examining EISs and expressing its opinion on environmental approval of projects of a national nature (article 20). Affirming the competence of the Regional Unified Investment Committees set out in Law No. 47.18, article 29(1) of the Environmental Assessment Law empowers these committees to make an economic, environmental and physical assessment of the projects submitted to it. A Regional Unified Investment Committee also examines EISs and expresses its opinion on the environmental approval of the investment projects.24

The distinction between the competence of the National Environmental Assessment Commission and the Unified Regional Investment Commission is a positive one – the principle of good governance through the grouping of bodies with common functions. Good governance will have a positive impact on the simplification of procedures and the rationality of work. In addition, the Standing Regional Committee on Investment is the closest to preserving natural resources from pollution and other risks. Therefore, it is competent to examine the EIS in order to achieve sustainable development that will ensure the preservation of environmental elements and take into account the environmental dimension and climate change in the execution of projects.

In addition to the advisory role of the Supreme Council for Water and Climate, the Water Law confers a range of competencies on the Water Basin Agency (article 80), which had been created by the previous Act No. 95–10, for Morocco’s 12 regions. One of the tasks of the Water Basin Agency is to complete measurements, research, and carry out the necessary studies to assess and track the development of water resources at the quantitative and quality levels. It also carries out studies on water planning, management, conservation and prevention of the impact of extreme weather events, particularly floods and droughts. Furthermore, it prepares a blueprint for the integrated development and implementation of water resources, local water management schemes and a blueprint for the management of water failure in the event of drought.

Within the framework of the regional approach, the Act establishes the Water Basin Council (article 88), which is mandated to examine and express its opinion on issues related to the management and planning of water, in particular the guideline for the integrated development of water resources and local water management schemes. Regarding the National Water Scheme, article 90 stipulates that the plan shall be developed by the administration in coordination with the relevant actors at the national level in a participatory approach. It shall be submitted for the opinion of the Supreme Water and Climate Council as the reference framework for the National Water Policy and approved by a decree published in the Official Bulletin.

It is noted from the foregoing that the country and its organs are in charge of legislating and establishing bodies responsible for the environment and climate. But in the absence of coordination between the organs and institutions entrusted with these functions, there will be a problem with the effectiveness of the government’s programmes in this area. The government has recognized this weakness.25

Challenges preventing the development of climate litigation in Morocco

Ensuring access to justice regarding climate change mitigation and adaptation is central to resolving climate-related disputes. Moreover, within this framework, it is essential to encompass proactive measures aimed at reducing environmental harm, fostering sustainable development, and upholding the right to a healthy environment.26

To the best of our knowledge, no cases falling within the scope of the aforementioned definition have been presented to the Moroccan judiciary. In this section, we will try to outline the reasons behind the limited progress of climate litigation in Morocco. At the outset, it should be noted that the absence of climate litigation might be attributed to a lack of collective awareness of this legal avenue, as well as the peculiarities of Moroccan’s legal system, which is deeply rooted in civil law traditions.

Lack of awareness

In Morocco there are many civil society associations and non-governmental organizations (NGOs), which are active in the field of environmental protection. They are considered an essential partner in preserving the environment’s wealth. This role is reflected in their contribution to the development and monitoring of government programmes at all levels. The National Strategy for Environment and Sustainable Development gives priority to civil society associations by strengthening their capacities. A series of annual activities have been organized since 2014, with the objective of pushing NGOs towards professionalism and transparency in environmental work.27 One successful example of civil society associations’ role in environmental protection is the Mohammed VI Foundation for Environmental Protection. This Foundation works under a well-defined strategy aimed primarily at fostering environmental education, sustainable tourism and rising awareness of the need to improve air quality and reduce GHG emissions.28

The Mohammed VI Foundation also participates in efforts to combat climate change. Since 2013 it has developed the Carbon Footprint Tool, which allows Moroccan actors to calculate their GHG emissions and support them in their low carbon transition. In addition, since 2022 the Foundation has launched a series of regional meetings to support Moroccan companies in the decarbonization of their activities, in order to best prepare for the EU Carbon Border Adjustment Mechanism (CBAM). The objectives of these meetings include: informing companies in the region with updates on the progress of the international climate agenda and the projections for COP27; disseminating information on the different ways of combating climate change (reduction approaches, compensation, and so on) in particular through the Qualit’Air Charter; presenting the carbon footprint tool and the existing support tools for business; and providing information on the eligible carbon offset actions and projects in the portfolio of voluntary carbon offset projects carried out by the Foundation.

In the same context is a project called ‘Mobilizing civil society to support dialogue in order to adapt to climate change in Morocco’, launched in 2018 under the auspices of the World Wildlife Fund office in North Africa. The project involves the active participation of 16 associations representing various regions of Morocco, and aims to support, train and strengthen their capacities. In addition, it aims to inform the authorities about the importance of integrating climate change adaptation into public policies for development, particularly in the areas of water, coast and forest.29

However, despite the importance of these initiatives, they fail to address the impact of climate litigation in strengthening the state’s commitment to mitigating the effects of climate change. As a result, no association has filed a legal claim against the state or an economic actor regarding this issue.

One reason for this state of affairs, is that Moroccan law does not allow civil society associations to present legal actions to defend the general interest and the right to live in a healthy environment,30 which largely limits the scope for any legal actions to be brought. Furthermore, disputes related to the climate are very expensive in terms of expert evidence-gathering and the costs of legal proceedings; an individual cannot bear the entirety of their expense.

Peculiarities of Morocco’s legal system

Morocco’s legal system is based on civil law. Therefore, justiciability is codified according to legal texts, and there are a set of conditions that must be met by the parties. According to article 1 of the Civil Procedure Code,31 to bring a case to a court of law a plaintiff must have capacity and standing. Standing refers to the set of requirements that a plaintiff must meet to demonstrate that they are entitled to bring a claim before the court.

Legal definitions of those who have standing vary across different jurisdictions. In Morocco, it is mandatory to initiate the lawsuit, and it must be done by the right holder, his successor or his legal representative. Standing refers also to the advantage that the plaintiff would obtain if the judge recognizes the validity of his claim. The plaintiff has to prove that they were injured and that their injury was caused by the defendant’s actions. In addition, their injury must be actual and specific.

We might imagine that a natural or legal person can have the interest and the capacity to seek justice to protect their right to a healthy environment, in accordance with article 31 of the Moroccan Constitution of 2011. This article states: ‘The State, public institutions and local authorities are committed to mobilizing all available resources to facilitate equal access for citizens to the conditions necessary for enjoying the rights to access water and a healthy environment’. However, these are general terms, which cannot be used as a basis for asking the state to respect its climate change commitments. For instance, under article 31, a citizen had demanded that the state guarantee her the right to healthcare as provided by the Constitution. The Court of Cassation, the highest court in Morocco, held that if the administration is required to perform a public service, which is the healthcare service, it does so within the limits of its available means.32

Of course, it is desirable to have an explicit text that states clearly how to claim the right to live in a healthy environment. In the same context, it is also essential to ensure the effective implementation of existing legal texts, by issuing the necessary regulations. For example, the preventive role of EISs must be effectively enforced. Therefore, the implementation of legal texts must be ensured. The contents of these texts refer to a series of decrees and decisions that have not been taken yet, or are being delayed by the government, which adversely affects the enforcement of the laws.

In Morocco, the implementation of legal texts requires application texts (decrees, orders and decisions), and without these texts the law cannot be implemented. The application of the Environmental Assessment Law requires the issuance of 13 applicable texts. Some legal texts had never been enforced because they were awaiting the issuance of practical texts such as Law No. 08.01 on quarries of 2002, which had not entered into force and had been replaced in 2015 by an entirely new Law No. 27.13.

The absence of applicable texts not only impedes the application of the law, but also prevents the introduction of the National Strategy for Environmental Conservation and Sustainable Development, and thus hampers the fulfillment of the state’s commitments in dealing with climate change. This may lead to its responsibility being raised in front of the national judiciary and the international community. This responsibility can be established under the concept of nonfeasance or delay in legislation. Here we refer to the executive’s legal rules in the exercise of its regulatory powers as a subsidiary legislative authority.33

This type of case is frequent in comparative law, including a decision of the Belgian Court of Cassation dated 28 September 2006, which states that the courts have the power to monitor the appropriate and adequate enactment of laws by the legislature.34 This respects the right to be tried within the reasonable time limit established under article 6.1 of the European Convention on Human Rights.35

The French judiciary has also held the state accountable for its failure to take the necessary measures for the implementation of the law. It has issued a ruling to repeal the implicit decision of the Department not to issue implementing decrees regarding child protection funds in accordance with a 2007 law. The court instructed the state to enact this decree under the threat of a fine and to compensate for damages caused by the absence of such funds.36

To the best of our knowledge, the Moroccan judiciary has not discussed any issue related to the slow pace of legislation in the environmental field or climate change. The absence of legislation and delays in its implementation constitute a violation of constitutional obligations. The enactment of a legal text is not considered complete until its implementing regulations are issued. The partial regulation of a matter is tantamount to a lack of regulation, especially concerning the rights and freedoms enshrined in the Constitution, such as the right to live in a healthy environment and the right to sustainable development.

Conclusion

Climate litigation is directly linked to the concept of sustainable development and a country’s compliance with its climate change obligations.37 Despite Morocco’s considerable legislative effort to adapt to climate change and reduce GHG emissions, the legislative system alone cannot succeed in this challenge. It requires a judiciary aware of the challenge and capable of implementing legal texts in all instances to accomplish the objective of safeguarding the environment and addressing climate change. To safeguard the rights of current and future generations to enjoy a particularly sound climate and environment, it is necessary to raise the public’s sense of environmental responsibility, awareness of the negative impacts of climate change, and the consequences of environmentally harmful actions.

To approach the issue of climate change and the problems it causes to legislators, it has been necessary to make a thorough analysis of legal texts and the difficulties of taking legal action regarding climate. As a result, several observations can be made in this respect. Firstly, there is a range of legal texts that protect the environment and reduce the effects of climate change in Morocco. However, there are few legal texts directly concerned with climate issues. These texts mainly aim to reduce the effects of climate change. As we explain above, to be implemented laws need their application texts (decrees, orders and decisions) to be adopted. The absence of the applicable texts of many laws makes them ineffective and, therefore, incapable of being implemented

Secondly, there is a multiplicity of national and local environmental and climate institutions and bodies. The advisory and propositional nature undermines the authority of these bodies and institutions and highlights their lack of decision-making capabilities.

Thirdly, there should be a specific procedure in place to enforce state obligations in relation to climate change and provide compensation to the victims of this phenomenon. However, in the Moroccan legal system, judges do not have extensive discretion when it comes to climate-related issues as, unlike common law jurisdictions, they cannot recognize new causes of action under suitable circumstances.

Finally, civil society’s involvement in climate litigation is weak and ineffective. This is due to the weakness of the relevant laws and the vulnerability of the associations themselves in terms of the possibilities and resources available to them, as well as their technical knowledge of the environment and its requirements.

Government should work on strengthening the capacities of various actors and raising public awareness of environmental issues and related regulations. The potential actors that can be of help here are environmental monitoring and inspection officers, judges who are experts in the substantive and technical aspects of environmental issues, and environmental protection associations that care about environmental litigation, and are privileged by public benefit status.

It is also advisable to work on enhancing cooperation and coordination among various stakeholders, including observation and inspection agencies, executors and judges, law enforcement bodies and civil society. Last but not least, is crucial to recognize the existence of environmental damage independent of its impact on human beings within civil law. Prior to these efforts, the government has to ensure that the relevant laws are prepared prior to their promulgation, or at least by establishing a clear enactment programme.

1

The World Bank Group, ‘Climate Risk Country Profile: Morocco, 2021’.

2

The Arab Maghreb States are aware of the importance of environmental protection. Morocco, Mauritania, Libya, Tunisia and Algeria have signed the Maghreb Charter on Environmental Protection and Sustainable Development as an important step, given the similarity of environmental issues in the Maghreb countries: http://www.moqatel.com/openshare/Wthaek/Molhak/MalahekMag/AMalahekMagrab38_2-1.htm_cvt.htm, accessed 10 September 2022.

3

The official website of the Government Authority for the Environment, contain a series of official reports on Morocco’s national environmental protection policies: http://www.environnement.gov.ma/en/.

4

Dahir No. 1.14.09 issued on 6 March 2014 implementing the Framework Law No. 99.12 as a National Charter for Environment and Sustainable Development – Official Bulletin No. 6240 on 20 March 2014, p. 3194.

6

Decree No. 2.18.74 of 21 March 2019, Official Bulletin No. 6766 of 4 April 2019, p. 1791.

7

National Sustainable Development Strategy, https://www.environnement.gov.ma/images/AR/SNDD_AR_3010_1.pdf, accessed 10 September 2022.

8

United Nations environment programme, ‘Global Climate Litigation Report 2020 Status Review’.

9

This is what emerges from the latest report of the Intergovernmental Panel on Climate Change (IPCC), ‘Climate Change 22: Impacts, Adaptation and Vulnerability’, p. 558. In addition, the 2020 edition of the United Nations World Water Development Report (UN WWDR 2020) entitled ‘Water and Climate Change’.

10

Dahir No. 1.03.61 of 12 May 2003, implementing Act No. 13.03 on combating air pollution, Official Bulletin No. 5118 of 19 June 2003, 1912.

11

Dahir No. 1.03.59 of 12 May 2003 implementing Law No. 11.03 on the Protection and Restoration of the Environment – Official Bulletin No. 5118 of 19 June 2003, p. 1900.

12

Dahir Sharif No. 1.10.16 of 11 February 2010 implementing Law No. 13.09 on Renewable Energies, Official Bulletin No. 5822 of 18 March 2010, p. 1118.

13

For example, electric vehicles are exempted from the annual vehicle tax (art. 260 of the General Tax Code).

14

In addition to some other principles stipulated in arts 1 and 2 of Framework Law No. 99.12.

15

Dahir No. 1.16.113, issued pursuant to Law No. 36.15 on water, Official Bulletin No. 6494 of 25 August 2016, p. 6305.

16

Article 1 of Decree No. 2.14.782 of 19 May 2015 on the organization and conduct of environmental police; Official Bulletin No. 6366 of 4 June 2015, p. 5581.

17

Dahir Sharif serves as Law No. 1.75.291 of 8 October 1977 on inspection measures in terms of safety and quality for living animals and animal materials or animal origin; Official Bulletin No. 3388 bis 10 October 1977, p. 2857.

18

The Water Law No. 15.36.

19

Dahir No. 1.20.78 issued on 8 August 2020 implementing Law No. 49.17 on Environmental Assessment. Official Bulletin No. 6908 of 13 August 2020, p. 4346.

20

Article 27 of the Environmental Assessment Act states: ‘Anyone who exploits an industrial unit or engages in an activity subject to an environmental impact study shall be liable to a fine of 10,000–100,000 Dhs, but not to the environmental approval decision referred to in article 15 of this Act. The same fine is also imposed on any school office that has provided false information. The fine shall be doubled in the case of the first return, the credit shall be withdrawn in the case of the second return, and the owner of the Office of Studies shall be prevented from conducting environmental impact studies for five years’.

21

Decision of the Court of Cassation No. 177 dated 29 March 2012 in Administrative File No. 775/4/2/2011 (published in the Cassation Court’s Real Estate Files Journal ‘Water and Forest Cases’, No. 4, 2014, p. 139).

22

Decree No. 2.79.247 of 12 May 1980 on the reorganization and improvement of the institutions responsible for the protection of the environment. Official Bulletin No. 3527 of 4 June 1980, p. 719.

23

R Fakhri and YL Hassouni, ‘The Enforcement of the Environmental Laws in Morocco’, unpublished article subject of a communication in The 3rd ASSELLMU Conference and Workshop was held on 1–5 November 2021 at the College of Law, Hamad Bin Khalifa University, Doha, Qatar.

24

Decree No. 1.19.18 of 13 February, implementing Act No. 47.18 on the reform of regional investment centers and the establishment of unified regional investment committees. Official Bulletin No. 6754 of 21 February 2019, p. 834.

25

Morocco Climate Change Policy (n 5), p. 20.

26

J Peel and HM Osofsky, ‘Climate Change Litigation’ (2020)16(1) Annual Review of Law and Social Science 21–38; United Nations Environment Programme, ‘Global Climate Litigation Report 2020 Status Review’, p. 6.

27

In this context, 12 training workshops are organized annually at the level of each Morocco’s entities for some 360 collective frameworks on; inter alia, local action to combat climate change and societal action. For more information on the work to promote the role of environmental protection associations, see the following associations: Renforcement-des-capacites.pdf (environnement.gov.ma) Appui-au-financement-des-projets-associatifs-ar-link.pdf (environnement.gov.ma), accessed 19 September 2022.

28

For more information about the Mohammed VI Foundation for Environmental Protection, https://www.fm6e.org/ar.html, accessed 19 September 2022.

29

It is clear that it is the role approved by Framework Law No. 99.12 for associations when referred to in the provision of the art. 22: ‘Civil society associations working mainly in the fields of the environment and sustainable development contribute to achieving the goals stipulated in this Law-Framework. To this end, it undertakes to carry out, either on its own initiative or in partnership with the state, territorial collectivities, public institutions, state companies and private contractors, every informative, sensitizing or proposing process that is capable of: Supporting the population’s keenness to respect the environment, natural resources, cultural heritage and the values of sustainable development, through awareness-raising and education processes; By ensuring the development and evaluation of tested methods and practices in the field of sustainable management of natural resources at the level of local communities; By contributing to the continuous improvement of the mechanisms in force in the field of population participation in environmental decision-making and access to environmental information.’

30

Contrary to what was stipulated in art. 36 of Law No.10.03 related to environmental protection and sustainable development in Algeria.

31

Dahir Carrying Law No. 1-74-447 of 28 September 1974 approving the text of the Civil Procedure Code, as amended and supplemented.

32

Decision No. 3/1550 dated 17 October 2019 issued in file No. 1/4/1583/2018.

33

Chapter 72 of the Constitution defines the government’s competence in the field of legislation.

34

Decision cited by M Buhru, ‘State Responsibility for the Actions of the Legislature’ (2020) 4 Journal of the Kingdom’s Judicial Agency, Issue of Liability Cases, p. 603.

35

Decision of the Belgian Court of Cassation No. C.02. 0570, dated 28 September 2006, www.cass.be.

36

Decision of the French Conseil d’Etat No. 325824; The French Conseil d’Etat issued a decision of 25 July 1936, in which it was held that the failure of the Ministry of Agriculture to intervene to apply the requirements of a particular law constituted a ‘grave error which would raise the responsibility of the State’. For more details check, Mustafa Buhru (n 34), p. 624 and below.

37

This year Morocco rose one spot to seventh – a top ten, high-performing country in this year’s Climate Change Performance Index (CCPI). As in the previous two years Morocco rates high in three main CCPI categories: GHG emissions, energy use, and climate policy: https://ccpi.org/country/mar/.

Content Metrics

May 2022 onwards Past Year Past 30 Days
Abstract Views 0 0 0
Full Text Views 922 922 90
PDF Downloads 175 175 63

Altmetrics