Urgenda

Urgenda wins Climate Case against Dutch government

Hear hear, the final ruling of the Dutch Supreme Court in the Urgenda Climate Case against the Dutch government is delivered. The Supreme Court made history by ruling that the Dutch government has a legal duty to prevent climate change.

The Supreme Court made history by ruling that the Dutch government has a legal duty to prevent climate change. Consequently, the Dutch government should, compared to 1990, cut its greenhouse gas emissions by at least 25% by the end of 2020 in order to contribute to the realisation of the worldwide acknowledged 2 ⁰C, respectively 1,5 ⁰C, climate goal. The final ruling of the Supreme Court followed the advice of the Procurator General and Advocate General to the Supreme Court and decided to uphold the judgment of the Court of Appeal, respectively the District Court of The Hague.

The Supreme Court clarified that the separation of powers (trias politica) is upheld in this case. The order issued by the Supreme Court is merely to safeguard a minimum reduction of 25%, safeguarding the discretionary powers of the Dutch government. It is up to the Dutch government to decide which way of law making is needed as well as what these laws should entail. Although the Dutch government has one more possible escape by lodging an application to the ECHR, the Dutch government would be well advised, in view of the approaching deadline, to start executing the order.

How the ideology to reduce climate change defeated the industrial era leading to a de-industrial ‘revolution’… or not? What does this ruling hold for the future?

The final ruling is unique in the sense that it is the first ruling worldwide to acknowledge the legal duty of a State to prevent climate change. Undoubtedly this ruling will lead to a domino effect of climate change cases around the world. However, the question remaining is: how can this legal duty be enforced? The end of 2020 is approaching soon and, rumour has it, the expectation is that the Dutch government is unable to meet the 2020 deadline.

Dutch culture shows that the Dutchmen do not give up easily, but is the 2020 deadline a reasonable deadline to meet? The UN Climate Convention, several UN Climate Change Conferences and studies such as of the IPCC show that the international awareness of climate change did not just arise in this day and age. It is only as of today that the legal community ordered the Dutch government to take account for climate change as well. With this in mind, the Dutch government in our opinion has had a reasonable period of time to take responsibility in the prevention of climate change for current and future generations.

A pregnant question is whether the approaching deadline will have the consequence that the Government imposes obligations on polluting companies to execute strict policies making them unable to run a business, thus leading to a de-industrial ‘revolution’. Will they become the black sheep and are they to blame by the Dutch Government in case the deadline is not met? We believe a likely scenario is that the Dutch government will in the end be held liable towards these companies and compensation will have to be paid out. Subsequently, the Dutch government’s lackadaisical position towards climate goals may in the end be the Dutch tax payer’s debt to pay.

Will the Dutch citizens be able to claim compensation of the Government in case the deadline is not met? A follow-up case by Urgenda is to be expected. In another specific case, Shell has been summoned by Milieudefensie in court to be held accountable for its part in climate change. The Urgenda case will undoubtedly have an impact on that case, as Shell will likely argue that it cannot be held liable in view of the decided legal duty of the Dutch government. Of course, notwithstanding the Government’s responsibility, companies will have their own tasks and duties in view of e.g. the Principles on Climate Obligations of Enterprises (2018).

Background information of the Climate Case: District Court of The Hague

886 Dutch citizens embodied by the Urgenda Foundation summoned the Dutch government to appear in court in order to establish the legal duty of the Government to prevent climate change.

The ruling of the District Court of The Hague on the 24th of June 2015 acknowledged the legal duty of the Government, ordering the Dutch government to reduce the greenhouse gas emissions by at least 25% compared to the greenhouse gas emissions in 1990 by the end of 2020 in order to contribute to the realisation of the worldwide acknowledged 2 ⁰C, respectively 1,5 ⁰C, climate goal.

According to the District Court of The Hague, the Dutch government acts wrongfully by not exercising the duty of care to reduce the greenhouse gas emissions with 25% or more by the end of 2020 compared to 1990. Studies showed that a reduction of the greenhouse gas emissions with at least 25% is needed to avert the risk of dangerous climate change. In case the Dutch government will not meet the reduction goals, the District Court ruled that this causes damage to the current and future generation Dutchmen. The impact of the greenhouse gas emission in the Netherlands is low compared to the Mondial greenhouse gas emissions, however, it is out of the question that these greenhouse gas emissions still partly cause climate change.

The discretion of the Dutch government is protected since it is not ordered to take prescribed measures of legislation or policy, but to enforce the order at the discretionary power of the Dutch government. In other words, there is no infringement of the trias politica (the separation of powers).

Background information of the Climate Case: Court of Appeal

On the 9th of October 2018 the Court of Appeal issued their judgement, following which the ruling of the District Court of the Hague was upheld.

Although the ruling of the District Court was inspired by the ECHR to establish the legal duty of care of the Dutch government, the Court of Appeal went a step further to decide that the Dutch government has a legal duty to prevent climate change based on article 2 ECHR (Right to Life) and 8 ECHR (Right to respect for private and family life, home and correspondence), giving the case an international dimension. The Court of Appeal states that:

there is a real threat of dangerous climate change, resulting in a serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life.

Following from article 2 ECHR and article 8 ECHR, the Dutch government has a duty to protect its citizens against this real threat.

With regard to the trias politica (separation of powers), the Court of Appeal expresses that there is much at stake:

the risk of irreversible changes to the worldwide ecosystems and liveability of our planet”.

For this reason, together with the violation of human rights calling for the provision of measures and the fact that the order to reduce the greenhouse gas emissions safeguards the discretionary power of the Dutch government by giving sufficient room in how to comply with the order, the Court of Appeal rules that there is no interference of de judgment with the separation of powers.

Background information on the Climate Case: the advice of the Procurator General Langemeijer and Advocate General Wissink to the Supreme Court

Both advisors pleaded to uphold the judgment of the Court of Appeal, thus upholding the order to the Dutch government to reduce the greenhouse emissions by at least 25% by the end of 2020 compared to 1990. They rejected all defences of the Dutch government. These advisors operate independently to provide the members of the Supreme Court with an advisory opinion (independent advice) on how to rule. The Supreme Court may always decide to rule accordingly or contrary to the independent advice.

Conclusion

Human-driven climate change was fought by the human-driven ideology of 886 Dutch citizens embodied by the Urgenda Foundation. We owe them a great debt of gratitude, and so do future generations.

This article is a product of the Holla Advocaten ‘Transition Team’. A multidisciplinary team of experts in the fields of environmental law, corporate law, (cross-border) litigation, IP, real estate, tax, insurance and insolvency law.

If you have any questions related to this article please contact Harald Wiersema (environmental law) or Melissa van den Berg (cross-border litigation).

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