Urgenda: Bringing the Climate to Court

For decades, the ever-elusive ‘legally binding’ commitment to emissions reductions has been pursued through climate conferences, protocols, and negotiations. Few expected it to finally surface in the form of a court ruling, but thanks to the actions of Dutch not-for-profit environmental organisation Urgenda (‘urgent agenda’), that it is indeed what has happened in the Netherlands.

After the case was filed against the Dutch government in late 2013, the Hague court ordered in June of this year that the Netherlands must raise its current emissions reduction target from 14 – 17% to 25% of 1990 levels by 2020. Anything less than this amount, the court said, is negligent, as it risks overshooting a two-degree global temperature increase which would lead to dangerous climate change. The court said such action breaches the duty of care that the Dutch state owes to its current and future citizens.

While the precedential value of this judgement will be largely restricted to the Netherlands, such an important ruling could still be influential in future litigation in the climate change domain. Importantly, the novel proceedings, ‘for which,’ the court said, ‘jurisprudence does not provide a ready-made framework’, resulted in several key judicial statements about the scope of the Dutch government’s responsibilities for climate change:

Courts can rule on a government’s climate commitments.

The court’s decision to impose a legally binding order on the government to meet IPCC standards was by far the most significant outcome of the case.

One of the major reasons a case like this has not been previously attempted has been the assumption that climate policy is a political area that traditionally belongs to the executive government, rather than the courts. Indeed, the Netherlands government argued in this case that a ruling against it would infringe on its discretionary decision-making powers, would be a breach of the separation of powers, and would harm its negotiating position in international politics.

However, while courts are often reluctant to interfere in areas of policy, the mere fact that a legal issue has political ramifications does not mean that it is immune from legal scrutiny. In this case, the court established that it could, indeed, make such a decision. In an effort to retain respect for the boundaries of government discretion, the court narrowed its order to the lowest end (25%) of the emissions reduction range (25-40%) recommended by the IPCC, and the government may still determine precisely how to comply with the order.

It is possible to make a claim on behalf of current and future generations, even outside national territory.

Urgenda brought its case not only on behalf of Dutch citizens, but also in the interests of current and future generations of other countries. This was a critical point of dispute by the State.

The court upheld Urgenda’s representation of these external interests as they were a core element of the organisation’s objectives. Urgenda’s aim to act for a ‘sustainable society’ was interpreted as having both intergenerational and extraterritorial reach. This meant that it could ‘partially’ base its claim on the protection of interests across national borders and across generations.

International law can inform the standard of care a government owes to its people.

Urgenda asserted that this case was particularly significant because it was the first of its kind to be brought on the basis of human rights. Urgenda drew upon a wide range of sources, including the Dutch Constitution, the UN Climate Change Convention, the European Convention on Human Rights and the international law ‘no harm’ principle to support its claim.

Unfortunately, the court found that none of these sources could directly give rise to a legal obligation to reduce emissions. First, it recognised that while the rules of international law do impose obligations on states, these primarily operate between states, and cannot be enforced by citizens. Second, Urgenda could not base its claim directly on human rights because, as an organisation rather than a natural person, Urgenda could not be a direct or indirect ‘victim’ of a rights violation.

What the court did find, however, is that these rules could still inform the common law standard of care that the Dutch government is expected to meet in protecting its people. These rules still therefore, played a critical role in establishing the type and extent of the legal obligations owed by the State.

Conventional arguments against higher emissions targets were rejected.

Unsurprisingly, the Dutch government raised a number of arguments to counter the claim that it had a legal obligation to reduce emissions at a faster pace.

The following claims were all rejected by the court:

• The government could not be seen as a contributor to climate change as it does not emit the country’s emissions itself
• A higher emissions reduction target would not make a difference to climate change on a global scale
• A higher emissions reduction target is not allowed under the EU Emissions Trading Scheme
• Emissions by other EU countries would negate any higher emissions reductions made by the Netherlands
• A higher emissions reduction target would disrupt the economic ‘level playing field’ and harm Dutch businesses

The court found that the government had expressly accepted responsibility for the country’s emissions by becoming a signatory to the UNFCCC, that this duty overrides any allegations about the actual outcomes of emissions reductions, and that economic arguments were unsupported by evidence or too vague to refute a legal obligation.

Damages can be claimed from climate inaction.

In Dutch law, damages (a monetary remedy) can be claimed if the possibility of damage to assets or a loss of benefits exists. The court stated that the possibility of harm from climate change in the Netherlands, and from emissions caused by Dutch emissions globally, is ‘so great and concrete’ that a legal remedy was required in this case.

Where to from here?

It has been widely reported that Urgenda’s success could kick-start a wave of similar legal actions around the world. Indeed, a Belgian NGO is already preparing to bring a similar case in the near future. However, prospects will always depend on the jurisdiction in which proceedings are brought – not all legal systems will be as accommodating as that of the Hague. Difficulties have already been identified, for example, if such a case was to be brought in Australia or the United States.

Nevertheless, the Urgenda case is likely to put governments on notice. If nothing else, it will force States to remember that behind any false sense of security they feel from the absence of legally binding obligations at an international level, back home, their people might just be lawyering up.

Further detailed analysis of this case, written prior to the judgment being delivered, can be found here.