On 24 June, an eye-opening court ruling was made in the Hague District Court - with potential repercussions on governments around the world. Including, of course, here. Cat Turner, Co-ordinator of Isle of Man Friends of the Earth, explains
For the first time a court has ordered a government to strengthen its climate change policy and set higher targets.
It decided that the Dutch state must take more action to reduce greenhouse gas (GHG) emissions in the Netherlands than it had been intending. Here’s how it happened.
Urgenda, a climate change NGO, on its own behalf and on behalf of almost 900 Dutch citizens, brought proceedings against the Dutch state over the Netherlands’ climate change policy and greenhouse gas emissions reduction targets.
The Dutch state’s climate change policy currently aims at a 17% reduction in GHG emissions by 2020.
The key points of Urgenda’s arguments were that:
l Current levels of global GHG emissions are likely to result in global warming of over 2 degrees C, with potentially catastrophic consequences.
l The level of global GHG emissions is contrary to Articles 2 and 8 of the European Convention on Human Rights (ECHR).
l The Netherlands makes a significant, excessive contribution to global GHG emissions. This makes the GHG emissions of the Netherlands unlawful.
l The Dutch state has the ability to manage, control and regulate Dutch GHG emissions (because they occur on Dutch territory), so it has “systemic responsibility” for total Dutch GHG emissions and can be held accountable for the Dutch contribution to dangerous climate change.
l Under national and international law, the Dutch state has an individual obligation and responsibility to ensure Dutch GHG emissions are reduced, in order to prevent dangerous climate change.
l The Dutch state’s duty of care means that the Netherlands should achieve a reduction of 25% to 40% GHG emissions by 2020, or a 40% reduction by 2030, compared to 1990 levels.
l The Dutch state’s current climate change policy (which is expected to achieve a reduction of 17% by 2020) is a breach of this duty of care.
Urgenda asked the court to order the Dutch state to ensure that GHG emissions from the Netherlands are cut by 25-40% from 1990 levels by 2020, or to ensure that emissions are reduced by 40% by 2030.
In response, the Dutch state argued that:
l Urgenda had no cause of action, to the extent that it was bringing a claim on behalf of current or future generations in other countries.
l There is no real threat of the Dutch state acting unlawfully towards Urgenda.
l The Dutch state’s current climate change policies aim to limit global warming to less than a 2 degrees C increase, and are expected to achieve this, in conjunction with international and EU law, policy and targets.
l The Dutch state does not have a legal obligation under national or international law to achieve the GHG emission reductions claimed by Urgenda.
l Dutch climate change policy is not in breach of Articles 2 or 8 of the ECHR.
l It would be a breach of the principle of separation of powers for the court to allow any of Urgenda’s claim. The court cannot force the Dutch state to change climate change policy.
The court considered the question in the context of international and EU climate change legislation and policy, including:
l The UN Framework Convention on Climate Change and Kyoto Protocol;
l The Treaty on the Functioning of the EU;
l The EU Emissions Trading Scheme legislation;
l Various climate change policy documents published by the European Commission and EU GHG emissions reduction targets.
It also looked at the relevant Dutch Civil Code and the Dutch Constitution.
After all this deliberation, it decided that the Dutch state does have a duty of care to mitigate climate change as quickly and as much as possible, as part of its duty of care under Dutch law to protect and improve the living environment.
The court considered the extent of this duty of care, and the limitations that could be placed on it. It concluded that a reduction of less than 25% to 40% would be a breach of the Dutch state’s duty of care. However, it didn’t think there were sufficient grounds for it to require the Dutch state to adopt a target of more than a 25% reduction.
The court has therefore ordered the Dutch state to ensure that Dutch GHG emissions achieve a reduction of at least 25% of 1990 levels by 2020.
The court also said that:
l Urgenda did have standing under the Dutch Civil Code.
l The Dutch GHG emissions reduction target is below the standard considered necessary by climate change science and international climate change policy, so the Netherlands (and other countries) must cut emissions by 25% to 40% by 2020 to meet the 2 degrees C target.
l Urgenda itself cannot rely on Articles 2 and 8 of the ECHR, as it is not a direct or indirect victim under Article 34 of the ECHR. However, the court used the principles of the ECHR to help it interpret the state’s duty of care to Urgenda.
l The Dutch state does not have a legal obligation towards Urgenda under Article 21 of the Dutch Constitution, the “no harm” principle, the UNFCCC, Article 191 of the TFEU or EU ETS legislation. However, this legislation is relevant in considering the nature of the state’s duty of care to Urgenda.
There has been speculation in the press that the decision will encourage NGOs in other countries to bring similar claims. A similar case is currently pending in Belgium so it’ll be interesting to see the approach that the court takes there.
However, the court’s decision revolved mostly around the duty of care under Dutch law, which is based on the Dutch Civil Code, so the court’s reasoning cannot be directly applied to the common law principles of tort in the UK, or indeed here on the island. . . if there are any lawyers out there who’d like to comment on this for us, we’d love to hear your views.