State of Netherlands v. Urgenda Foundation, The Hague Court of Appeal, 9 October 2018, read judgment here
The Hague Court of Appeal has just upheld a decision by the District Court that the Dutch State had failed to do enough to combat climate change. In response to a claim by an NGO, Urgenda and 886 co-claimants, the Court ordered the State to reduce its emissions by at least 25% by the end of 2020 (benchmarked against 1990 emissions).
The case raises a mass of interesting issues, not least the various unsuccessful attempts by the State to avoid liability.
The difficulty for the State was that it had previously devised a policy that it would reduce emissions by 30%. It then changed its mind and lowered this target to 20%, in line with the (minimum) requirements to be found in the EU Emissions Trading Directive as amended in 2009.
The judgment contains a useful summary of the leading international agreements and shifts in the guidance given by the International Panel on Climate Change, particularly in its 4th and 5th Assessment Reports. It also reminds us of the innovation to be found in the 2016 Paris Agreement, namely that of individual state responsibility – the bottom-up approach.
The claim was put on the basis that the State had acted unlawfully in not pressing for greater progress; its conduct “violates proper social conduct” and was contrary to the duties of care arising out of Articles 2 (right to life) and 8 (right to family life) contained in the ECHR. The Court below had found unlawfulness but had not uphold the claims in respect of Articles 2 and 8 – apparently in reliance on Art.34 (the right of access to the ECtHR). As the Court of Appeal point out, Art.34 ECHR was irrelevant; the fact it did not confer any rights to rely on the Articles in the domestic courts, did not mean that those domestic courts could not adjudicate upon such disputes.
The State had disputed Urgenda’s standing before the Dutch courts, not in respect of existing nationals but insofar as Urgenda represented future generations. The Court dismissed this, in reliance on a very widely drafted part of the Dutch Civil Code concerning class actions which may involve not only financial interests but also “more idealistic ideals” .
The Court of Appeal’s analysis of why the State was in breach of Articles 2 and 8 was put in conventional terms, relying on ECHR cases such as Oneryildiz (often cited in UK environmental cases).
42. Regarding the positive obligation to take concrete actions to prevent future infringements….the European Court of Human Rights has considered that Articles 2 and 8 ECHR have to be explained in a way that does not place an ‘impossible or disproportionate burden’ on the government. …….. the government only has to take concrete actions which are reasonable and for which it is authorised in the case of a real and imminent threat, which the government knew or ought to have known. ……An effective protection demands that the infringement is to be prevented as much as possible through early intervention of the government.
So was there a real and imminent threat arising out of climate change? Fastening on to the apprehended consequences of a substantially greater than 2C rise in temperature,
this will cause more flooding due to rising sea levels, heat stress due to more intensive and longer periods of heat, increasing prevalence of respiratory diseases due to worsened air quality, droughts (accompanied by forest fires), increasing spread of infectious diseases and severe flooding as a result of heavy rainfall, disruption in the food production and potable water supply. Ecosystems, flora and fauna will also be affected, and biodiversity loss will occur.
Unsurprisingly, given this, the Court concluded at  that
it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life. As has been considered above by the Court, it follows from Articles 2 and 8 ECHR that the State has a duty to protect against this real threat.
It proceeded to consider whether the state had acted unlawfully in not aiming to reduce emissions by at least 25% by the end of 2020. Ultimately, it concluded that this obligation was in accordance with its duty of care.
Some of the State’s defences were very familiar. If the Netherlands does more to address its emissions, other states will do less. This drew a tart response that this was unlikely given that (surprisingly) the Netherlands were lagging behind other states including Germany, the UK, Denmark, Sweden and France. Similar arguments about carbon “leakage”, companies moving elsewhere if the Netherlands went stricter, also failed, as did the inevitable “level playing field” point. The underlying difficulty in all of this lay in the EU Treaty, which in Article 192, expressly reserves the rights of states to act more ambitiously than EU measures may require.
The Court equally relied on the precautionary principle in international environmental law, and pointed out that this principle has been recognised in ECHR case law (Tatar v. Romania, 27 January 2009).
A more formidable argument was that it was not for the courts but for the democratically legitimised government as the appropriate body to make the attendant policy choices. The Court responded that this did not apply in a rights violation case, but in any event the order left the State sufficient room to decide how it can comply with the order.
The State went wider. It could only act to the degree required by adopting legislation, and hence the order of the Court
constitutes an order to create legislation and that the court is not in the position to impose such an order on the State. However, the district court correctly considered that Urgenda’s claim is not intended to create legislation, either by parliament or lower government bodies, and that the State retains complete freedom to determine how it will comply with the order.
In any event, the order did not prescribe the content of such legislation, and was hence not an ‘order to create legislation’.
This is a fascinating and wide-ranging judgment from the Hague. There was ultimately no black-letter law which required the State to reduce its emissions by 25% (unlike, say the air pollution laws which ClientEarth has used against Defra). The obligation to reduce emissions was drawn from the strength of the evidence of the threats posed by climate change, when measured against the somewhat unconvincing policy history adopted by the State. The latter made it difficult for the State to rely on the full width of its margin of appreciation which would normally be the let-out in a case of this type.
One to watch. It will undoubtedly encourage more litigation of this type in the UK, but the right target for such litigation will need identifying with extreme care.
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