States’ legal obligations on climate change extend beyond international treaties and include independent legal obligations towards their citizens. Hague District Court’s landmark ruling held that the Netherlands must take more action to reduce its greenhouse gas emissions

Coming within a week of the publication of Laudato si’, on 24 June 2015 the Hague District Court handed down its judgement in Urgenda Foundation v The State of the Netherlands (Ministry of Infrastructure and the Environment)  [2015] Case C/09/456689/HA ZA 13-1396 [English Translation]. The court Press Release summarizes the proceedings:

“The Hague District Court has ruled today that the State must take more action to reduce the greenhouse gas emissions in the Netherlands. The State also has to ensure that the Dutch emissions in the year 2020 will be at least 25% lower than those in 1990. The Urgenda Foundation had requested the court for a ruling.

Current policy below the norm

The parties agree that the severity and scope of the climate problem make it necessary to take measures to reduce greenhouse gas emissions. Based on the State’s current policy, the Netherlands will achieve a reduction of 17% at most in 2020, which is below the norm of 25% to 40% for developed countries deemed necessary in climate science and international climate policy.

State must provide protection

The State must do more to avert the imminent danger caused by climate change, also in view of its duty of care to protect and improve the living environment. The State is responsible for effectively controlling the Dutch emission levels. Moreover, the costs of the measures ordered by the court are not unacceptably high. Therefore, the State should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts. Any reduction of emissions contributes to the prevention of dangerous climate change and as a developed country the Netherlands should take the lead in this.

With this order, the court has not entered the domain of politics. The court must provide legal protection, also in cases against the government, while respecting the government’s scope for policymaking. For these reasons, the court should exercise restraint and has limited therefore the reduction order to 25%, the lower limit of the 25%-40% norm.

Urgenda

The legal proceedings were instituted by the Urgenda Foundation, a citizens’ platform which develops plans and measures to prevent climate change. The foundation also represents 886 individuals in this case.”

Aspects of the judgement

Class actions on environmental issues are not unknown, and on 29 April 2015, the UK Supreme Court handed down judgement in favour of the Appellants in R (o.a.o. ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 281, bringing to an end the sequence of proceedings that arose out of ‘the admitted and continuing failure of the United Kingdom since 2010 to secure compliance in certain zones with the limits for nitrogen dioxide levels set by European Union law, under Directive 2008/50/EC[1]. Whereas the UK case was a judicial review of the actions of Defra in implementing the Directive, the Urgenda case was a judicial review of the State’s obligations to its citizens in relation to the impact of global warming.

With regard to reliance upon human rights provisions, the court held that Urgenda itself could not directly rely on Articles 2 and 8 ECHR,

“4.45 …the court considers that Urgenda itself cannot be designated as a direct or indirect victim, within the meaning of Article 34 ECHR, of a violation of Articles 2 and 8 ECHR   Even if Urgenda’s objectives, formulated in its by-laws, are explained in such a way as to also include the protection of national and international society from a violation of Article 2 and 8 ECHR, this does not give Urgenda the status of a potential victim within the sense of Article 34 ECHR (cf. ECtHR 29 September 2009, Van Melle et al./Netherlands, no. 19221/08) …

4.46. However, both articles and their interpretation given by the ECtHR, particularly with respect to environmental right issues, can serve as a source of interpretation when detailing and implementing open private-law standards in the manner described above, such as the unwritten standard of care of Book 6, Section 162 of the Dutch Civil Code.”

This was echoed in the Court’s intermediate conclusion on the duty of care:

“4.52. The foregoing leads the court to conclude that a legal obligation of the State towards Urgenda cannot be derived from Article 21 of the Dutch Constitution, the “no harm” principle, the UN Climate Change Convention, with associated protocols, and Article 191 TFEU with the ETS Directive and Effort Sharing Decision based on TFEU.

Although Urgenda cannot directly derive rights from these rules and Articles 2 and 8 ECHR, these regulations still hold meaning, namely in the question discussed below whether the State has failed to meet its duty of care towards Urgenda. First of all, it can be derived from these rules what degree of discretionary power the State is entitled to in how it exercises the tasks and authorities given to it. Secondly, the objectives laid down in these regulations are relevant in determing the minimum degree of care the State is expected to observe. In order to determine the scope of the State’s duty of care and the discretionary power it is entitled to, the court will therefore also consider the objectives of international and European climate policy as well as the principles on which the policies are based.”

On the State’s duty of care and determining the reduction target, the Court conlcuded:

“4.83. Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring – without mitigating measures – the court concludes that the State has a duty of care to take mitigation measures.”

[…]

4.85. Urgenda is correct in arguing that the postponement of mitigation efforts, as currently supported by the State (less strict reduction between the present day and 2030 and a significant reduction as of 2030), will cause a cumulation effect, which will result in higher levels of CO₂ in the atmosphere in comparison to a more even procentual or linear decrease of emissions starting today.

A higher reduction target for 2020 (40%, 30% or 25%) will cause lower total, cumulated greenhouse gas emissions across a longer period of time in comparison with the target of less than 20% chosen by the State.

The court agrees with Urgenda that by choosing this reduction path, even though it is also aimed at realising the 2°C target, will in fact make significant contributions to the risk of hazardous climate change and can therefore not be deemed as a sufficient and acceptable alternative to the scientifically proven and acknowledged higher reduction path of 25-40% in 2020”,

and in relation to the causal link,

“4.90. From the above considerations, particularly in 4.79, it follows that a sufficient causal link can be assumed to exist between the Dutch greenhouse gas emissions, global climate change and the effects (now and in the future) on the Dutch living climate. The fact that the current Dutch greenhouse gas emissions are limited on a global scale does not alter the fact that these emission contribute to climate change. The court has taken into consideration in this respect as well that the Dutch greenhouse emissions have contributed to climate change and by their nature will also continue to contribute to climate change.”

Finally, on the important Issue of the system of separation of powers, the court stated:

“4.94. The main point of this dispute concerns if allowing Urgenda’s main claim – an order for the State to limit greenhouse gas emissions further than it has currently planned – would constitute an interference with the distribution of powers in our democratic system. Urgenda has answered this question in the negative and the State, relying on the trias politica, has arrived at an opposing viewpoint.

[…]

4.97. It is worthwhile noting that a judge, although not elected and therefore has no democratic legitimacy, has democratic legitimacy in another – but vital – respect. His authority and ensuing “power” are based on democratically established legislation, whether national or international, which has assigned him the task of settling legal disputes. This task also extends to cases in which citizens, individually or collectively, have turned against government authorities. The task of providing legal protection from government authorities, such as the State, pre-eminently belong to the domain of a judge. This task is also enshrined in legislation.

4.98. In a general sense, given the grounds put forward by Urgenda, the claim does not fall outside the scope of the court’s domain. The claim essentially concerns legal protection and therefore requires a “judicial review”. This does not mean that allowing one or more components of the claim can also have political consequences and in that respect can affect political decision-making. However, this is inherent in the role of the court with respect to government authorities in a state under the rule of law. The possibility – and in this case even certainty – that the issue is also and mainly the subject of political decision-making is no reason for curbing the judge in his task and authority to settle disputes. Whether or not there is a “political support base” for the outcome is not relevant in the court’s decision-making process. This does not mean that the requirement of restraint referred to above applies in full to judgments with unforeseaable or difficult to assess consequences for third parties.”

Comment

Whilst Laudato si’ identified the strategy of buying and selling “carbon credits” as an example of “a new form of speculation which would not help reduce the emission of polluting gases worldwide”, the success of Urgenda Foundation v The State of the Netherlands (Ministry of Infrastructure and the Environment) was due in part to consideration of the Netherland’s emissions in the context of the requirements imposed by the targets and mechanism of the European Emissions Trading Directive, (EU ETS).

[1] D N Pocklington, “Nitrogen dioxide (NO₂) pollution in the UK”,  [2015] 27 ELM (1) (to be published).