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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…

 

Climate Change before the Courts: Urgenda Ruling Redraws the Boundary between Law and Politics

Published on November 16, 2018        Author: 

On the 9th of October, the Hague Court of Appeal upheld the first-instance judgment in the Urgenda case, ordering the Dutch State to reduce greenhouse gas emissions more progressively than planned by the government. The appeal judgment was applauded across the world and welcomed as a source of inspiration for climate change litigation in other jurisdictions. At the same time, the ruling has evoked criticism in the Netherlands, where commentators wondered if the court had not overstepped the boundary between law and politics, violating the separation of powers (eg in Dutch here, here, and here). The ruling raises intricate questions concerning the proper role of domestic courts in securing compliance with the European Convention on Human Rights (ECHR) in matters of general policy. Arguably, the judgment expands the role of courts beyond what Dutch constitutional law allows them to do, but this expansion fits with the increasing emphasis put on the notion of subsidiarity by the Member States of the Council of Europe.

Greenhouse Gas Emissions and Human Rights

The Court of Appeal confirmed that by 2020, the Dutch government should have reduced the cumulative volume of greenhouse gas emissions by at least 25 % compared to the situation in 1990. The government had agreed to a 49 % reduction target for 2030 and a 80-95 % target for 2050 (para 46), but disputed that it was legally obliged to commit to a reduction target of at least 25 % for 2020, in light of the EU’s commitment of 20 %. The appeal court agreed with Urgenda that a reduction of 20 % by 2020 would not be sufficient to meet the 2030 target and that reduction efforts should not be delayed (para 47).

According to the court, the State’s refusal to commit to at least 25 % breached its duty of care under Articles 2 and 8 of the ECHR. In interpreting these Articles, the court ruled that ‘the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life’ (para 43). The court noted ‘a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’ (para 45). In this context, the State’s duty of care required a reduction of at least 25 % (para 73). Read the rest of this entry…