The Urgenda Foundation v The State of the Netherlands (Ministry of Infrastructure and the Environment), C/09/456689/ HA ZA 13-1396 (English translation) (24 June 2015)
In a landmark decision The Hague District Court, partly relying on human rights law, has ordered the Dutch Government to take more action to reduce greenhouse gas emissions in the Netherlands.
The Court ruled on 24 June 2015 that the Dutch Government, by starting from a greenhouse gas emissions target for 2020 of less than 25% compared to the year 1990, had acted negligently and unlawfully towards the Urgenda Foundation, the plaintiff in the proceedings [4.93].
The dispute in this case concerned the pace, or the level at which the Dutch Government needed to start reducing greenhouse gas emissions [4.32]. Urgenda, a Dutch non-government organization, had legal standing to bring the proceedings under Book 3, Article 3:303a of the Dutch Civil Code, which allows an environmental organisation to bring a claim to protect the environment without an identifiable group of persons needing protection [4.6].
Urgenda argued the Dutch Government acted contrary to its duty of care owed to Urgenda, the 886 individuals it represented and Dutch society more generally by not pursing an adequate climate change policy. They further argued that by setting inadequate emission levels the Dutch Government had wrongly exposed the international community to the dangers of climate change and consequently serious and irreversible damage to human health and the environment. The Dutch Government’s climate policy had a reduction target of between 14-17% in 2020 compared to 1990 levels, with a delayed target of 40% by 2030 and 80-95% by 2050 [4.32].
The court rejected Urgenda’s claim in so far as it was instituted on behalf of 886 claimants, partly for practical reasons including that the court found that they had insufficient information about the claimants and that their claims could not lead to a decision other than the one which Urgenda seeks. Therefore the court left the question of standing with respect to those claimants unanswered [4.109].
The court accepted as fact that the current global emissions and reduction targets of the signatories to the UN Climate Change Convention are insufficient to realise the 2 degree target and this posed a ‘very high’ risk of dangerous climate change occurring [4.65]; and that without implementing far reaching reduction measures, the 2 degree target will become impossible to achieve [4.65]. Additionally, the court found that at least since 2007, the State has had knowledge of global warming and its associated risks [4.65].
The Court found, in regards to Article 21 of the Dutch Constitution which imposes a duty of care on the State relating to the livability of the country and the protection and improvement of the living environment, that the manner in which this duty of care is to be carried out is covered by the Government’s own discretionary powers [4.36]. Furthermore in regards to the State’s international law obligations they found that these are owed to State parties, not to non-government organisations like Urgenda. The Court also said the State’s obligations under article 2 (right to life) and article 8 (respect for private and family life) of the European Convention on Human Rights were to natural persons and not legal persons whose physical integrity or privacy could not be violated [4.45]. Importantly though the Court said that although Urgenda cannot derive rights from these rules, “both articles and their interpretation…particularly with respect to environmental right issues, can serve as a source of interpretation when detailing and implementing open private-law standards” [4.46].
The court noted that the question of whether the State is in breach of its duty of care for taking insufficient measures to prevent dangerous climate change is ‘a legal issue which has never before been answered in Dutch proceedings and for which jurisprudence does not provide a ready-made framework’ [4.53]. They noted that the answer to the question of whether or not the State is taking sufficient mitigation measures depends on many factors with two aspects having particular relevance; an assessment of whether there is an unlawful hazardous negligence on the part of the State and the fact that the State’s discretionary power is relevant in assessing the government’s actions [4.53].
In determining the State’s discretionary powers the court took into account well established environmental law principles that are enshrined in the United Nationals Framework Convention on Climate Change and the Treaty on the Functioning of the European Union. These included the precautionary principle which expresses that taking measures cannot be delayed to await full scientific certainty.
The court concluded that the Dutch government owed Urgenda a duty of care to take adequate climate change mitigation measures because of the severity of the consequences of climate change and the great risk of hazardous climate change occurring, if mitigation measures are not taken [4.83].
The court agreed with Urgenda’s argument that a higher reduction target for 2020 will cause lower total, cumulated greenhouse gas emissions across a longer period of time in comparison with the current target of 14-17% chosen by the State [4.85]. The court found that the alternative path of 25%-40% by 2020 compared to 1990 levels was acceptable, and that 25% was the absolute minimum for the Netherlands to avert the danger of hazardous climate change [4.86].
Urgenda was successful in seeking an enforceable order the State limit the joint volume of Dutch annual greenhouse gas emissions by at least 25% by the end of 2020 compared to 1990. The court found that there were insufficient grounds to compel the State to adopt a higher level than the minimum level of 25%. This was, in part, because the obligation to adhere to a higher percentage clashes with the discretionary power vested in the State [4.86].
Several aspects of the decision are of particular interest to debates about climate change impacts currently playing out in Australian courts, as well as in Australian and international climate policy formation. Those aspects include the courts finding that, based on the global nature and responsibility of the problem, a sufficient causal link exists between the Dutch greenhouse gas emissions, global climate change and its present and future effects on the Dutch living climate. [4.96]
It is important to note that the court disregarded the relative proportion of Dutch emissions and focused its reasoning on the cumulative aspects of Dutch emissions in determining the causal link to climate change. [4.90] Further, the court rejected the Dutch government’s argument that additional efforts in reducing Dutch greenhouse gas emissions is ineffective to prevent hazardous climate change because its positive effects will be attenuated by the emissions of other European countries. [4.81] The court stated that preventing hazardous climate change is a global problem that requires global accountability, and that all countries are compelled to implement mitigation measures to the fullest extent possible. [4.79]
While the human rights arguments advanced by Urgenda relying on articles 2 and 8 of the European Convention on Human Rights were not determinative in this case, particularly given the court’s decision on standing of the individual claimants, the content of those rights assisted the court to interpret other legal obligations owed by the State.
The unofficial English translation of the case, on which this case note is based, can be found here: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196
A video of a shorter version of the verdict as read by the court, with English subtitles, can be found here: https://www.youtube.com/watch?v=aY7eLKJWLxQ
Madeleine Manifold is a volunteer at Environmental Justice Australia.