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  Climate Change Court Commentary  
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In a recent verdict, a civil court [1] in the Netherlands ordered the Dutch government to strengthen its actions to reduce national GHG emissions in 2020 as its current actions are ‘inadequate and negligent’ towards its citizens. SQ Consult’s Machtelt Oudenes (Environmental lawyer) and Dian Phylipsen (Senior associate climate change) highlight the positive messages from this extraordinary verdict for national and international climate change efforts They also discuss some issues related to the rule of law and the mandate of democratically elected governments and what this might mean for the case chances on appeal, and its wider applicability in other countries.

 
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  Summary of the court case  
 

The civil court was instigated by Urgenda, a citizen’s platform aiming for a fast transition to a sustainable, circular economy, which views climate change as one of the biggest threats of our times. In this breakthrough case, Urgenda also represented the interest of 886 individual citizens as co-plaintiffs. Its principle claim was to order the Dutch government to reduce the Dutch annual greenhouse gas (GHG) emissions by 40% by the end of 2020 or in any case by at least 25% compared to 1990. Urgenda attested that the Dutch government is basically failing in its responsibility to take appropriate action against climate change and to reduce their GHG emissions in a sufficient manner to protect its citizens. Current policy in the Netherlands requires a GHG emission reduction of 17% by 2020 compared to 1990. Urgenda claimed that, as such, the Dutch government fails to meet its duty of care [2] towards its citizens and therefore acts unlawfully.

Summary of the court casePrinciples like the precautionary principle and the fairness principle are enshrined in international, European and national law, and are generally applied in jurisprudence. Notwithstanding that, this is the first case in which a court has explicitly declared a State to have an active duty of care towards its people, therefore being responsible for taking appropriate action against climate change by sufficiently reducing GHG emissions. The verdict basically uses a combination of human rights law and tort law to hold the Dutch State accountable for not doing so in this case. Perhaps partly inspired by the Oslo principles on Global Obligations to reduce Climate Change [3] the civil court ruled that:

  • The current national efforts in reducing GHG emissions are inadequate to meet the long-term objectives and agreements underwritten by Dutch government in international treaties and agreements, such as the agreed 2°C temperature increase limit or the 2050 emission reduction objective of 80-95%;
  • The Dutch government is ordered to increase its 2020 GHG emission reduction target to 25% below 1990 emissions. The verdict also concludes that the costs of the measures ordered by the court are not unacceptably high;
  • The small contribution of the Netherlands to global emissions cannot be used as an excuse to do less than required by the government’s own long-term objectives. 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;
  • The Dutch court is not usurping the government’s primacy on policy-making since under the rule of law the court must provide legal protection of citizens against governmental bodies, while respecting the government’s discretionary power in policy making. According to the court the judiciary power does not encroach the responsibilities of the State if it orders that State to apply the lower end of the scientifically established range of emission reductions required from developed countries of 25 to 40% compared to 1990 levels.
 
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  Important messages for climate change efforts in the Netherlands and elsewhere  
 

Aside from potentially remaining legal questions, as discussed below, the outcome of the court case (and the underlying motivation) sends a number of strong messages for climate change efforts, both in the Netherlands and abroad. First and foremost, it establishes that governments have a duty of care to protect its citizens against the negative impacts of climate change, and it is against the law not to act accordingly. Secondly, it uses the government’s own position in terms of accepted urgency and adopted long-term policy objectives to measure the adequacy of its short-term actions, avoiding potentially endless discussions on the state of science and whether that is or can be indisputable enough to stand up in court. Specifically for the Netherlands, the verdict clearly signals that Dutch climate mitigation efforts are insufficient, if measured against the government’s own stated long-term objectives and accepted treaty responsibilities. As such, the court is providing a useful counter-balance on behalf of less influential NGOs and citizens against the organised lobbies of businesses arguing against more ambitious action. Lastly, the verdict establishes that governments cannot escape action by hiding behind the argument of “we’re only a small contributor”, as a way to deny the causal link between its own mitigation actions and the global climate change impact. This could have a positive impact by avoiding the prisoners’ dilemma for individual countries and the associated delays in implementing action. If upheld in the higher court, all three are important principles that could have potential ramifications for climate change efforts around the world.

 
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  Important questions and reservations  
 

An important question for such a landmark case is of course whether it will hold on appeal and will create a precedent. Here, a number of considerations play a role:

  • Is the rationale applied in the verdict sufficiently robust to withstand counter-cases?
  • How does the duty of care principle applied in this case relate to duty of care in other policy areas (e.g. health care, labour market protection, financial deficits)? Would application in those areas lead to outcomes that conflict with the outcome of the current case in terms of policy and spending priorities?
  • Does the court encroach the democratically elected government in its role of weighing the interests of different stakeholders? Is there sufficient justification for such a role that outweighs the potential risks?
  • And, if upheld on appeal, can this court case be replicated in other countries?
Although parties have attempted before to invoke the people’s right to environmental protection in case law, this is the first time a court has actually recognised the State’s responsibility to avert the danger of climate change and to take more action to reduce GHG emissions. The court justifies its verdict by acknowledging the current and future generations’ rights to natural resources and a safe and healthy living environment as well as the State’s obligation to take protective measures to ensure that right.

The court’s ruling reflects a development in international law that has been gradually evolving over the years. Principles and human rights embedded in international conventions, the European Treaty, the European Convention of Human Rights and national constitutional law, are invoked more and more in environmental case law over the world, though usually less successfully than in this Urgenda case. There is definitely a growing awareness of the link between the protection of human rights and the environment.

Usually it is found difficult to directly appeal to such more general principles and derive concrete legal obligations from them. A court therefore needs to apply a whole range of factors and mostly weigh different interests. It requires a delicate balance between conflicting principles which is mostly a complicated exercise. According to Dutch tort law, unlawful action or inaction can be determined if the standard of due care is violated. In determining the scope of the duty of care of the Dutch State, the court considered the nature and extent of the damage ensuing from climate change, the knowledge and foreseeability of this damage, the chance that hazardous climate change will occur, the nature of the acts or omissions of the state, the onerousness of taking precautionary measures, the discretion of the state to execute its public duties, the available (technical) options to take security measures, and the cost-benefit ratio of the security measures to be taken. Basically the principles of subsidiarity, precaution, sustainability and fairness were taken into account. The court extensively motivated its conclusions and specified how each factor was considered and how this affected the ruling. It also used policy statements, technical IPCC information and European studies to substantiate its conclusions on cost-benefit ratio and to justify its ruling that the Dutch State is negligent in honouring its own policy intentions and taking sufficient GHG reduction measures. The objective – or at least widely accepted - nature of the factors concerned increases the chance of success in an appeal, though higher courts are in general more restrictive in their interpretations.

However, even more important than the extensive use of scientific and widely accepted evidence is the government’s own acceptance of that evidence as noted in the previous section. In its own policy decisions, the government has accepted and accorded the existing source material as sufficiently sound as the basis for its policy positions and targets. This has been affirmed through signing international treaties and accords to that effect and adopting the 2.5°C temperature increase limit and the 25-40% emission reduction targets as European and national policy. So while the science might not be 100% unassailable, the standard the court has held the Dutch government to, is that of its own policy decisions and targets. And there, the Dutch efforts have been judged to fall short compared to what is needed according to the science as accepted by the government.

Other obstacles in such court cases are often the problem of causation and the question of whether a court can involve itself in matters that are primarily the domain of policy makers. In this case, the court uses earlier joint liability case law [4] to overcome that problem of causation and to hold the Dutch State liable for climate change damage suffered by individual citizens:

“A sufficient causal link can be assumed to exist between the Dutch GHG emissions, global climate change and the effects (now and in the future) on the Dutch living climate. The fact that the amount of the Dutch GHG emissions is small compared to other countries does not affect the obligation to take precautionary measures in view of the State’s obligation to exercise due care.”

Although the earlier case law differs from this particular situation, the court considered that the doctrine of “hazardous negligence” could be applied to the theme of hazardous climate change. Here, unlawful hazardous negligence could be defined as “the failure of a party to exercise the standard of due care that could place society in a dangerous situation and threaten, harm or result in damages to current and future generations of that society”.

The factors mentioned above and derived from earlier case law were applied to determine the causal link between the State’s failure to take sufficient GHG emission reduction measures and the damages incurred by current and future generations. The crux of this case might well be its differences with earlier case law: the central focus of this case is on dealing with a hazardous global development on climate change. It is not certain when, where and to what extent this hazard will materialise. The conclusions on causation are therefore less straightforward than earlier case law and could be subject to closer consideration in a potential appeal.

Important questions and reservations The question raised in the second bullet point above also depends on whether the definition of unlawful hazardous negligence mentioned above would apply to the duty of care in other policy areas. If parties would claim a similar duty of care for other policy areas, they first have to prove that the State’s inaction constituted unlawful hazardous negligence. While there could be areas where failure to act in a certain way could be imagined to constitute hazardous negligence (e.g. in relation to budget cuts in health care), it could be more difficult to argue this should be considered unlawful. For one, the cause-and-effect relation of a State’s inaction may be more difficult to establish, as less international consensus and international legislation is likely to exist in these policy areas than for climate change. In addition headline policy objective widely accepted by the government are less likely to exist in these other policy areas. This means the gap between the government’s own policy statements and accepted international treaties and the effectiveness of its national policy measures is not a viable argument to demonstrate negligence and to overcome potentially weaker causation. So, in our view, there is limited risk that the application of the duty of care in other policy areas does not conflict with the duty of care as established in this case.

The third bullet point above relates to the issue of separation of powers. In relation to this, the court states that Dutch law does not have a full separation of state powers:

“The distribution of the executive and judiciary powers is rather intended to establish a balance between these state powers.”

According to the court a judge’s power is based on democratically established legislation and extends to cases in which citizens, individually or collectively are harmed in their rights by actions taken by government authorities. The court calls it an essential feature of the rule of law that the actions of political bodies can be assessed by an independent court, in particular when providing legal protection against negligence on the part of the State. As such, this is a far-reaching ruling in which the court treads on a domain that can be difficult to judge since it involves not only interests of different stakeholders, political interests and negotiation positions in future climate change discussions but also highly technical information.

It is not straightforward whether courts in other countries will come to a similar decision. It will be interesting to see whether this court’s ruling will be picked up by other courts. A similar climate change case was launched in Belgium after the Urgenda victory, but the outcome is still uncertain. Also in many other countries plans are made for similar cases spurred by the success of Urgenda in the Netherlands. In the United States, however, in a case where governmental ambition levels were also being challenged – though coming from the opposite angle - the Supreme Court decided that government had not sufficiently weighed corporate interests, rejecting more ambitious environmental targets [5]. Success will largely depend on the specific legal system of a country [6] and how the delineation of the roles of the three powers is embedded in national law.
 
In the meantime in the Netherlands, the government has agreed to hold a debate on the Urgenda case in parliament before taking any decision on launching an appeal. With that, the fate of the ruling’s impact is back in the political domain, where clear differences in views on climate change ambitions between the two current coalition parties exist. This does increase the risk of further narrowing the window of opportunity to implement the necessary measures to take effect by 2020. Public reaction aimed at convincing the government not to appeal was swift, with the hashtag #ganietinberoep (no to appeal) trending on Twitter.

It would be a positive outcome if Urgenda case leads to a more ambitious and consistent climate policy in the Netherlands, with potential reverberations around the world. In any case, this ruling harbours interesting legal aspects that could have a huge impact on climate change litigation. The last words have surely not been written on this landmark case.

[1] Civil court case, C/09/456689 / HA ZA 13-1396 of civil court in The Hague, 24 June 2015,
[2] In Dutch ‘zorgplicht’
[3] Oslo principles on Global Obligations to reduce Climate Change On March 1 2015 a group of experts in international law, human rights law, environmental law and other law adopted the Oslo principles on Global Obligations to Reduce Climate Change. These principles set out the legal obligations of States and enterprises to take the urgent measures necessary to avert climate change and its catastrophic effects)
[4] In the Kelderluik ruling of the Dutch Supreme Court, concrete factors were used to establish hazardous negligence of an individual party and to determine a causal link between the damages incurred on one side and the act for which that individual party was held liable on the other side. The case revolved around a customer of a bar who fell through a trap door (‘kelderluik’ in Dutch), left open by a deliveryman. Because of negligence that person had endangered the life of the customer and therefore acted unlawfully. The court recognised a requirement of acting with due care towards society. (HR 5 November 1965, ECLI:NL:HR:1965:AB7079, NJ 1966, 136)
[5] Utility Air Regulatory Group v Environmental Protection Agency et al, U.S. Supreme Court, June 29, 2015. In this case the Supreme Court ruled against the White House effort to significantly reduce emissions from coal-burning power plants, and thereby avert climate change. The Court concluded that EPA did not consider the costs for industry when developing the rules to regulate power plants for mercury and other toxic pollutants.
[6] In some countries and legal systems the separation between the judiciary and executive powers is stricter and a similar ruling will be less likely.
 
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  Contact the authors: SQ Consult
 

Machtelt Oudenes
Dian Phylipsen

P.O. Box 8239
3503 RE Utrecht
The Netherlands
info@sqconsult.com
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