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Setting Precedents: Dutch Judiciary v Climate Change

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About The Author

Maria Georgieva (Guest Contributor)

Maria has just finished her second year at the University of Glasgow. She is currently studying Law with German Language. In September 2015 Maria will undertake her year abroad in Berlin. Her main areas of interest are human rights law, environmental law, immigration law and EU law. Maria has previously volunteered at the Scottish Refugee Council as a Refugee Integration Volunteer.

In June 2015, for the first time ever, a judicial body ordered the government of a country to do something more on climate change. It happened after a massive legal campaign in the Netherlands that included 886 plaintiffs organised by the sustainability foundation Urgenda, which first took action in 2012. What was the reason for their success? It might have been the great number of supporters, or the leniency of the court, or maybe respect for the international climate agreements that the Netherlands had entered into.   

It was up to the court to decide whether the Dutch government had been negligent for ‘knowingly contributing’ to a breach of the 2C maximum target for global warming. The Dutch government had already introduced plans to cut emissions by 14-17% from 1990 levels by 2020. However, the plans were considered inadequate by the campaigners, who were aiming for a more robust policy to cut emissions.

The Dutch court cited science as the basis of its verdict. Therefore, we need to be aware of those scientific findings that at this point have become widely accepted by scientists and politicians. 

Background targets and figures

The Intergovernmental Panel on Climate Change sets targets for greenhouse gas emissions based on possible strategies in response to the consequences of climate change. The targets set for developed nations were to reduce their emissions between 25% and 40% below 1990 levels by 2020. This was deemed necessary to create a 50% chance of avoiding a critical 2C rise in global temperatures. 2C is the warming limit, acknowledged at the UN climate convention, to which the Netherlands, the UK and over 160 other governments around the world have signed up. Drought, rising sea levels and extreme weather conditions would be only some of the devastating consequences of the 2C limit being reached. For further information on the science, see the article by the environmental group, 350, ‘The Science’. 

When it comes to the environment, the EU tries to keep up as much as possible. Recently, it has set a target of reducing emissions by 40% by 2030.

All these targets and international agreements undoubtedly apply to the Netherlands. It is also worth noting that the Netherlands is a low-lying country, which puts it at higher risk from rising sea levels and storm surges in comparison to other developed nations. 

The dispute and its resolution

The scientific findings were considered facts by the court and were not disputed by either of the parties. Both sides agreed on the common aim – to meet the 2C target, and the means – through mitigation of greenhouse emissions. It was rather the pace, or the level at which the state needed to start reducing them in order to achieve the 2C goal that the parties disagreed on. In government’s view, what was needed was a ‘stable and widely supported policy framework’.   

In the end, the policy framework was not supported by the Hague District Court. The government’s plan to cut emissions by just 14-17% was held to be unlawful and the Dutch State was ordered to reduce its emissions by at least 25% within 5 years from 1990 levels. The decision is in line with the IPCC norm for developed countries.

The ruling helps restore Dutch pride as Europe’s green economic leader. Recently, the Global Green Economy Index Report observed harshly that the Netherlands received more credit than they deserved for their green economic performance. Notably, other EU member states such as Denmark have already pledged to cut their emissions by 40% below 1990 levels by 2020. 

The Dutch government cannot singlehandedly solve the global climate change problem, however, ‘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 judges’ ruling said.    

Campaigners’ arguments

The legal arguments, of course, play a huge part in winning a campaign such as this. Urgenda did a brilliant job in presenting a combination of human rights and tort law to hold the government responsible for failing to reduce carbon emissions fast enough. The basis of the reasoning was the government’s ancient duty of care, reasoning equally applicable in many other legal systems.  

The plaintiffs had the opportunity to rely on the Oslo Principles on Global Climate Change Obligations – a highly persuasive set of principles according to which in failing to introduce adequate policy to prevent the harmful effects of climate change, governments have already broken existing human rights, environmental and tort laws, regardless of any pre-existing international agreements.  

Unsurprisingly, international environmental law also played its part through the principle of prevention. In the Corfu Channel case, it was held that it is ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’. A State is thus obliged to use all the means at its disposal in order to avoid activities such as polluting its territory to the extent that they cause significant damage to the environment of another state. This obligation has been established as ‘part of the corpus of international law relating to the environment’.   

The legal arguments also involved EU law, specifically, the ‘precautionary principle’, detailed in Article 191 of the TFEU, which prohibits actions that carry unknown but potentially severe risks. The court considered the principles and objectives of the European climate policy when assessing whether or not the state had acted wrongfully.   

Government’s defences

As already mentioned, the government disputed neither the scientific findings, nor the importance of achieving the 2C target.

Perhaps unsurprisingly, cost did not feature as a prominent defence. The state may well have accepted the understanding that environmental issues have an ethical and moral dimension that discounts cost. Regardless of the government’s reasoning, the court stated that the costs of implementing higher reduction measures were ‘not unacceptably high’.

In my view, the government’s most promising argument was based on the government’s discretionary power. The state claimed that it cannot be forced at law to pursue another climate policy. It tried to argue that allowing Urgenda’s claim would be contrary to the government’s discretionary power and an erosion of the core principle of separation of powers. To this, the court responded that Urgenda’s claim essentially concerned legal protection, therefore, it did not fall outside the scope of the court’s domain.    

Even though the court effectively ordered the government to abandon its own policy and pursue another one, the court stated that it has not entered politics. This rather brave decision was justified by the three judges’ reading of the UN Climate Change Convention and the Treaty on the Functioning of the European Union (TFEU). The court agreed with the state that Urgenda could not rely directly on either of those. However, the importance of these rules was that they determined the degree of discretionary power the state was entitled to and also the state’s duty of care to take reduction measures. The court concluded that the state has breached this duty of care by failing to introduce adequate reduction measures.

Implications from the ruling

Environmental groups hope that the decision in the Netherlands could ‘set an avalanche in motion’ for similar cases to be decided in the same manner. Lawyers in Belgium called Ockels, supported by 8,000 citizens, are currently preparing for court proceedings against their own government.  

The basis of Urgenda’s legal arguments can be summarised with seven words: ‘states are meant to protect their citizens.’ This is what Marjan Minnesma, director of the Urgenda Foundation told Nature: ‘[i]f politicians will not do this of their own accord, then the courts are there to help.’ 

Before this judgement, the only legal obligations on states were those they agreed among themselves in international treaties,’ said Dennis van Berkel, legal counsel for Urgenda. According to him, the court's ruling is a reminder of states' 'independent legal obligation towards their citizens.'

The timing seems ideal, with governments meeting again in Paris at the end of 2015, attempting to agree on delivering additional mitigation of carbon emissions. For a comprehensive analysis of what might transpire from these negotiations, see Ryan Turner’s KCTL article on the future of climate change regulation. Urgenda and their supporters believe that if governments expect pressure from courts in their own jurisdictions this might influence them during the negotiations in Paris.

International agreements still play the most important role when it comes to protecting the environment, but the Dutch court may have just given us a judicial solution to the climate change problem. Some legal experts argue that the judiciary can play a fundamental role in tackling climate change. The author of ‘Revolution Justified’, and legal adviser for the plaintiffs, Robert Cox wrote in his book: ‘We’re now 23 years down the road of the climate change treaty and it’s obvious that international politics has not brought much good to the world. The power of politics, fossil fuel companies and the banks are so large but there is one other powerful system with a lot of wisdom and that is the law.’ 

How to (successfully) sue your government to do more on climate change?

So, taking the Dutch case as a starting point, what does one need to sue a government to do more on climate change? Most vital of all is an independent and powerful court system, one that you would expect to occasionally make historical changes in society. Moreover, it helps if there are long lasting traditions in protecting the environment in one’s country. Urgenda managed to utilise these factors well.

Alternatively, their job would have been much harder if they were placed, for example, in China, the world’s worst polluter. Over the past decade, China introduced many environmental protection laws, however, the environment still remains far behind the leadership’s priorities. These new laws are rarely enforced due to the weakness of the local environmental bureaucracy, the weak enforcement capacity of China’s legal system and the lack of judicial expertise on environmental matters.

Another aspect that could considerably tilt the scales in favour of one’s case is the number of the supporters. Then, as you would expect, a solid case is required, preferably based on a combination of national law, international environmental law, and EU law (if applicable). Needless to say, awareness of all the science and statistics relevant to the issue is a prerequisite. If all this is in place one might witness a successful legal campaign. Only time will show if this judicial solution is our strongest weapon for achieving climate change action.  

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Tagged: Environmental Law, European Union, International Law, Judicial Review

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