Climate Change Court Commentary

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.

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.