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A New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case

Published on January 6, 2020        Author:  and

 

 

The judgment of the Dutch Supreme Court in State of the Netherlands v Urgenda is a landmark for future climate change litigation. On the 20th of December 2019, the Supreme Court held that on the basis of the European Convention on Human Rights (ECHR) the Netherlands has a positive obligation to take measures for the prevention of climate change and that it has to reduce its greenhouse gas (GHG) emissions with at least 25% by the end of 2020, compared to 1990 levels. An unofficial translation of the full judgement will be published on the website of the Dutch judiciary after the 13th of January 2020.

The judgment is significant as it demonstrates how a court can determine responsibilities of an individual state, notwithstanding the fact that climate change is caused by a multiplicity of other actors who share responsibility for its harmful effects. Around the world, a flood of lawsuits has been initiated to establish legal responsibility for actors contributing to climate change. The Urgenda judgment, that has been heralded as the ‘strongest’ of all, makes clear that the fact the a state is only a minor contributor compared to many other actors, does not preclude its individual responsibility. The judgment contains important pointers that plaintiffs and courts can rely on in similar cases.

In this blogpost we briefly recap the procedure leading to the Supreme Court judgment and discuss three conclusions reached by the Supreme Court that will be of wider interest:

1) the ECHR imposed a positive obligation to take appropriate measures to prevent to climate change;

2) these measures should at least ensure that the Netherlands realizes a reduction of GHG emissions by 25%, compared to 1990, by the end of 2020; and

3) even though the Netherlands was only a minor contributor to climate change, it had an independent obligation to reduce emissions.

Recap of the proceedings

Central to the proceedings was the reduction target for developed nations of 25%-40% by 2020, compared to 1990 levels, originally identified as one scenario in the 2007 Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC). The Netherlands had embraced this target in 2007, stating that it aimed to reduce Dutch emissions with 30% by 2020. Yet in 2011, the government indicated that it would not meet the target, instead aiming for 14-17% reduction.

In 2013, a Dutch NGO with a mission to contribute to sustainability and innovation called Urgenda (‘urgent agenda)’, initiated a lawsuit against the Dutch State with the aim to order the State to reduce Dutch GHG emissions by 40% at the end of the year 2020, or at least by a minimum of 25% in comparison the year 1990.

In the 2015 judgment of the Hague District Court, Urgenda prevailed. The District Court ordered the State to ‘limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, such that this volume will have been reduced by at least 25% at the end of 2020 compared to the level of the year 1990′. The District Court based this order on the doctrine of hazardous negligence, which is read into the provision on tort in the Dutch Civil Code: behaviour is inter alia considered tortious if it unnecessarily creates danger and thus is contrary to what ‘according to unwritten law is deemed fit in societal interrelations’ (Article 6:162). Contrary to Urgenda’s claim, the District Court did not ground its conclusion directly on human rights law, as it held that Urgenda could not invoke human rights provisions stemming from the ECHR (nor could it invoke the United Nations Convention against Climate Change (UNFCCC)). Read the rest of this entry…