The Precedential Value of Urgenda v. The Netherlands
Vol. 40 Associate Editor
On October 9, 2018, activists and concerned citizens across the world celebrated The Hague Court of Appeal’s decision to affirm Urgenda v. The Netherlands, the first judgment ever which ordered a state to limit greenhouse gas (GHG) emissions on the basis of tort liability. However, their euphoria was short-lived. Just one day later, the UN Intergovernmental Panel on Climate Change (IPCC) issued its annual report, containing the foreseeable but still ominous warning that only a dozen years remain to limit global climate change to an increase of 1.5°C. Yet even in the wake of this news, Urgenda provides reasons for optimism, especially given the increasing frequency with which groups are resorting to the courts to force states to take more drastic action to mitigate climate change. In its decision, the Court of Appeal agreed with the District Court’s conclusion in 2015 that the Dutch government had failed to meet its duty of care to the people of the Netherlands to prevent climate change. But unlike the District Court, the Court of Appeal saw little reason to preclude the Urgenda Foundation from directly invoking articles of the European Convention on Human Rights (ECHR). While the District Court had allowed the ECHR articles to frame the requisite duty of care the government owed Urgenda under Dutch civil law, the Court of Appeal viewed the ECHR as creating standalone, positive obligations: in other words, as having more than what some observers call a “horizontal effect.” In addition, the Court of Appeal referenced several changes that had taken place since the initial ruling to reinforce its conclusion. First, it brought up the 2016 Paris Agreement to emphasize the global consensus around limiting climate change to 1.5°C. The court noted that a 25-40% reduction in emissions relative to 1990 by 2020 was consistent with a path toward having only a “more likely than not” chance of achieving a more perilous 2°C target. Given this awareness, it might seem surprising that the court deemed the State’s minimum duty of care with respect to emissions cuts by 2020 to be only 25%. Since Urgenda did not appeal the District Court’s rejection of a reduction of more than 25%, though, the Court of Appeal was barred from ordering a deeper cut. Furthermore, the Court of Appeal noted that the Dutch government had retrospectively re-calculated and raised the 1990 baseline level of emissions. As the court observed, this meant that the prior assumption that the Netherlands’ existing policy would reduce emissions by only 14-17% relative to 1990 by 2020 had jumped to a 19-27% reduction – all without the Dutch government lifting a finger to strengthen its mitigation efforts. Although the higher numbers superficially put the Netherlands closer to achieving the 25% minimum reduction in emissions, they actually impose a more lenient standard on the State and will ultimately lead to greater cumulative emissions and therefore greater harm to the plaintiffs. While Dutch decisions have no binding authority on the Court of Justice of the European Union (CJEU), the Court might find striking a number of parallels between Urgenda and another case currently on its docket. Just like in Urgenda, the crux of the issue in the “People’s Climate Case” is the alleged inadequacy of legislative targets for greenhouse gas emissions reductions. The plaintiffs – ten families from within and outside Europe – contest the legality of the GHG Emissions Acts, which compel EU states to reduce GHG emissions by 40% relative to 1990 levels by 2030 and by 80% relative to such levels by 2050. They seek an injunction forcing the European Commission and European Parliament to adopt targets that reduce emissions “to the extent of [the EU’s] technical and economic capacity.” The complaint claims that “subjective” and “objective” higher rank legal norms – derived from the Charter of Fundamental Rights of the EU (CHFR) and from sources including the Paris Agreement and the customary no-harm rule, respectively – require the EU to avoid harm caused by climate change and associated infringements of fundamental human rights. Because these norms impose obligations which supersede supranational law and the 2030 emissions targets violate each of them, the plaintiffs argue, the targets must be rendered void, with revision required. Although the complaint also contains a non-contractual liability claim similar to the tort action in Urgenda, the majority of the allegations focus on the legality of the legislation, rather than the harm it has caused and will cause. Therefore, unlike the Dutch courts, the CJEU should not need to consider whether higher rank international law must be confined to informing the appropriate duty of care to apply to the legislative action at issue. Rather, the plaintiffs should be able to directly invoke these fundamental rights and norms to establish that the legislatively chosen percentages in the Acts are contrary to law. Even if the jurisdiction, basic nature of the claims, and applicable human rights instrument in the two cases are not identical, the CJEU should find persuasive a number of principles relied upon in Urgenda that are just as relevant in the People’s Climate Case. The Precautionary Principle First, the Urgenda court, citing European Court of Human Rights case law, held that since the Netherlands clearly knew that climate change presents a “real and imminent threat,” it needed to take precautionary measures to prevent infringement of fundamental rights as far as possible. The court found unacceptable the 19-27% margin of uncertainty for 2020 reductions because there was a “very real chance” that the 25% target will not be met. The precautionary principle urges that in such a scenario, measures that are safe or as safe as possible must be chosen. The plaintiffs in the People’s Climate Case make a similarly convincing argument, pointing to the fact that the EU’s carbon budgets are based on only a “relatively modest likelihood” that a temperature increase would actually be limited to 1.5°C or 2.0°C. The Principle of Proportionality Second, the Urgenda court rejected the State’s argument that it had discretion to choose the appropriate emissions reduction pathway after considering and balancing other public and private interests. Likewise, the complaint in the People’s Climate Case argues that “while it may be permissible for the [EU] legislature to weigh up competing interests, it can only do within strict limits.” The principle of proportionality enshrined in the CHFR allows limitations on fundamental rights only if they are necessary and pursue a general interest recognized by the Union. Moreover, the plaintiffs contend that when there is a hazard, the required duty of care should be proportional to the degree of danger. Given the dire seriousness of climate change, the standard should be rigorous and preclude the EU from arguing, as the Netherlands did unsuccessfully in Urgenda, that choosing specific emissions targets involves a policy judgment that should not be scrutinized in a judicial forum. The Principle of Equity Moreover, the Urgenda court believed that the Netherlands had to assume greater responsibility for its emissions because it had historically reaped the benefits of disproportionately high fossil fuel consumption. The People’s Climate Case plaintiffs agree with this sentiment with respect to the entire EU. Describing the principle of equitable utilization of natural resources shared by two or more states embodied in the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, the plaintiffs submit that developed countries must bear a heavier burden in combating climate change. In summary, the two cases involve a largely overlapping set of rights, norms, laws, and treaties that the plaintiffs relied upon to demonstrate the government’s obligation to consider and adopt more stringent measures for the reduction of GHG emissions. In light of these shared underlying principles, the distinctions between the cases are ultimately trivial and should not prevent the CJEU from recognizing the sensibility of the Urgenda judgment. Lastly, the cases also share a significant factual similarity: both the Dutch government and the European Commission elected to lower their emissions targets without providing any explanation for the change. Neither decision was substantiated by climate science; rather, the unstated driving force seemed to be a desire to preserve financial resources. To stand a chance of controlling climate change, courts must be willing to prod other branches of government to take more aggressive mitigation measures when they are reluctant or unable, or even hostile to the idea. If the 1.5°C goal is to be met, the CJEU must acknowledge that declining to provide a legal remedy in a case like the People’s Climate Case is simply unviable.
 Arthur Neslen, Dutch Appeals Court Upholds Landmark Climate Change Ruling, The Guardian, Oct. 9, 2018, https://www.theguardian.com/environment/2018/oct/09/dutch-appeals-court-upholds-landmark-climate-change-ruling.  U.N. Env’t Programme and World Meteorological Org., Intergovernmental Panel on Climate Change [IPCC], IPCC Special Report on Global Warming of 1.5°C, http://www.ipcc.ch/report/sr15/; see also Richard A. Betts et al., Changes in Climate Extremes, Fresh Water Availability and Vulnerability to Food Insecurity Projected at 1.5°C and 2°C Global Warming With a Higher-Resolution Global Climate Model, 376 Philosophical Transactions A 2119 (2018) (exploring various real-world consequences of a 1.5°C versus 2°C global temperature increase).  See, e.g., Lliuya v. RWE AG, Landgericht Essen [District Court Essen], Dec. 15, 2016 (Ger.) (available at (http://www.justiz.nrw.de/nrwe/lgs/essen/lg_essen/j2016/2_O_285_15_Urteil_20161215.html); Juliana v. United States, No. 6:15-cv-01517 (D. Or. filed Aug. 12, 2015).  Stichting Urgenda v. Gov’t of the Netherlands (Ministry of Infrastructure and Env’t), Gerechtshof Den Haag [Hague Court of Appeal], ECLI:NL:RBDHA:2018:2610, Oct. 9, 2018 (Neth.) [hereinafter “Urgenda appellate decision”] (unofficial English translation available at http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2018/20181009_2015-HAZA-C0900456689_decision-3.pdf).  The Urgenda Foundation is a Dutch environmental group which represented 886 Dutch citizens in this lawsuit.  The District Court had found that Urgenda, as a legal entity, could not be a “direct or indirect victim” of climate change within the framework of the ECHR, and thus could not “directly derive rights” from Articles 2 (the right to life) and 8 (the right to home and private life, also encompassing the environment). Stichting Urgenda v. Gov’t of the Netherlands (Ministry of Infrastructure and Env’t), Rechtbank Den Haag [Hague District Court], ECLI:2015:NL:RBDHA:2015:7145, ¶ 4.52, Jun. 24, 2015 (Neth.) [hereinafter “Urgenda trial decision”].  Id.  “The Court is obliged to apply provisions with direct effect of treaties to which the Netherlands is party, including Articles 2 and 8 ECHR. After all, such provisions form part of the Dutch jurisdiction and even take precedence over Dutch laws that deviate from them.” Urgenda appellate decision, ¶ 69; see also Urgenda appellate decision, ¶¶ 43, 76.  See Suryapratim Roy & Edwin Woerdman, Situating Urgenda v The Netherlands Within Comparative Climate Change Litigation, 34 J. of Energy & Nat. Res. L. 165, n.49 (2016). Relatedly, Roy and Woerdman note that Dutch law typically “is still reluctant to allow courts to review statutes, [but] it appears that what is unique to the Dutch legal order is how it is situated vis-à-vis supranational and international law. As Article 94 of the Constitution and the significant role of the ECHR…indicate, supranational and international law play a major role in providing a normative basis for the judicial review of legislative and executive acts.” Id. at 174.  Urgenda appellate decision, ¶ 44, 50.  Id., ¶ 48-50.  Id., ¶ 76.  Id., ¶ 3.9.  Id., ¶ 21.  Id., ¶ 73.  Id., ¶ 47, 73.  Case T-330/18, Carvalho and Others v. The European Parliament and Council [“People’s Climate Case”]. The CJEU agreed to hear the case in August 2018.  Complaint at ¶ 154, People’s Climate Case (available at https://peoplesclimatecase.caneurope.org/wp-content/uploads/2018/05/application-delivered-to-european-general-court-1.pdf).  Id.  Id., ¶ 155.  Id., ¶ 156-58.  Id., ¶ 384.  Id., ¶ 385  See id., ¶ 156-60.  Plaintiffs additionally argue that the Acts violate the Paris Agreement. Id., ¶257. Even though the European Parliament in 2017 voted in favor of making member states’ emissions targets legally binding, the strength of this argument depends on whether the Paris Agreement itself imposes sufficient legal force. See Press Release, European Parliament, Paris Agreement: Parliament Backs New Carbon Cuts, Debates U.S. Withdrawal (Jun. 14, 2017) (available at http://www.europarl.europa.eu/news/en/press-room/20170609IPR77005/paris-agreement-parliament-backs-new-carbon-cuts-debates-u-s-withdrawal); Ralph Bodle, Lena Donat & Mathias Duwe, The Paris Agreement: Analysis, Assessment, and Outlook, 10 Carbon & Climate L. Rev. 5 (2016). To address this potential problem, plaintiffs argue that 2°C represents a binding hard cap. Complaint, ¶ 209-10, People’s Climate Case. 1.5°C”.  Urgenda appellate decision, ¶ 42, 43, 51, 53.  Id., ¶ 73.  Id.  Complaint, ¶ 284, People’s Climate Case.  Urgenda appellate decision, ¶ 30, 69.  Complaint, ¶ 220, People’s Climate Case. Charter of Fundamental Rights of the European Union art. 52(1), 2010 O.J. C 83/02 at 402.  Complaint, ¶ 225-26, People’s Climate Case.  Urgenda appellate decision, ¶30.  “The Netherlands, as a highly developed country, has profited from fossil fuels for a long time and still ranks among the countries with the highest per capita greenhouse gas emissions in the world.” Id., ¶ 66.  Complaint, ¶ 195-96, People’s Climate Case.  Id. (recognizing the UNFCCC’s urge that “developed country Parties…take the lead in combating climate change and the adverse effects thereof” and the Paris Agreement’s acknowledgement of “the principle of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances”).  Urgenda appellate decision, ¶ 52; Complaint, ¶ 295, People’s Climate Case.  Urgenda appellate decision, ¶ 52; Complaint, ¶294, People’s Climate Case (“It is patent… hat the analysis was explicitly based on finding the most “cost-effective” pathway to an ultimate target of an 80% reduction by 2050). The views expressed in this post represent the views of the post’s author only.