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Landmark Climate Change Ruling – Urgenda (Netherlands)

On 9 October 2018, in a landmark decision, the Hague Court of Appeal confirmed that the Government of the Netherlands was failing its duty of care to the current generation of Dutch nationals by not acting decisively to reduce greenhouse gases. This decision upheld the earlier District Court decision, in 2015[1] which is a landmark case for citizen lead climate change litigation.

This 2018 appeal decision reaffirms that the government of the Netherlands must act urgently to lower emissions by 25% by 2020 (a larger reduction than agreed at an EU level[2]). It is a most timely reminder, given the recent IPCC report, that government inaction on climate change ought not be a political hot potato but rather a clear cut obligation of governments to their citizens.

This appeal case outlines interesting arguments, commonly heard in climate change debates. The arguments explored in this case are worth consideration.

The Urgenda Case

Urgenda (‘Urgent Agenda’) is a citizens’ foundation whose purpose is to stimulate and accelerate the transition process to a more sustainable society, beginning in the Netherlands.[3]

Urgenda successfully contended that the greenhouse gas emissions reduction efforts of the Dutch Government – at least those covering the period up to 2020 – were not ambitious enough. It argued that there is a real threat of dangerous climate change, not only today but certainly also in the near future.[4]

The Court found that Urgenda had sufficient ‘interest’ to bring its claim. It considered it unnecessary to determine whether Urgenda could act on behalf of future generations, because Urgenda represented the current generation of Dutch nationals and individuals subject to the State’s jurisdiction. The Court held:

‘After all, it is without doubt plausible that the current generation of Dutch nationals, in particular but not limited to the young individuals in this group, will have to deal with the adverse effects of climate change in their lifetime if global greenhouse gas emissions are not adequately reduced’.[5]

The Urgenda Case sought to rely on the Duty of Care arising from Articles 2 and 8 of the European Court of Human Rights (ECHR). The Court confirmed that the Netherlands has both positive and negative obligations relating to the interests protected by both Articles. The Court held that, if the Dutch Government:

‘knows that there is a real and imminent threat, the State must take precautionary measures to prevent infringement as far as possible’.[6]

In taking such measures, the government is only required to take concrete actions which are reasonable and for which it is authorised, noting that the government has a ‘wide margin of appreciation’ in choosing its measures.[7] The Court confirmed that there was 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 disruption of family life.[8]

Given the real threat, the Government has a duty to protect its citizens against this real threat.[9]

The Netherlands Government Case

The Government argued that there is no absolute need to reduce emissions by 25-40% by the end of the 2020.

It argued that choosing the most appropriate reduction path was a political question, with policymaking requiring the consideration of all interests involved (such as those of industry, finance, and energy provision). The Court rejected these arguments.

The State also pursued the ‘drop in the ocean’ argument, whereby ‘Dutch emissions are minor in absolute terms and that the Netherlands cannot solve the global problem of climate change on its own’.[10] The Court also dismissed this argument, finding:

‘This does not release the State from its obligation to take measures within its territory, within its capabilities, which in concert with the efforts of other states provide protection from the hazards of dangerous climate change’.[11]

These arguments are familiar to ones applied in Australia.

The Government contended that its duties were met in part by the adaptation measures it had or will take. The Court found that adaptation measures do not take away from the State’s obligation to reduce greenhouse gas emissions quicker than planned.[12]

Interestingly, the Government also raised a practical basis for appealing the 2015 decision. It argued that the remaining available time (until end of 2020) was very short and as such it should not be required to meet the ordered target. The Court also rejected this argument as the Government knew of the severity of the climate problem for a long time and that, up until 2011, the government had focused its policy on a reduction target of 30%. Further, the Netherlands had profited from fossil fuels for a long time and continues to rank among the countries with the highest per capita greenhouse gas emissions in the world.[13] The Court acknowledged that reduction measures are drastic, requiring financial and other sacrifices, but there is also ‘much at stake: the risk of irreversible changes to the worldwide ecosystems and liveability of our planet’.[14]

Finally, the Government contended that the 2015 decision was beyond power as it interfered with the Government’s right to legislate. The Court rejected a separation of powers argument on the basis that human rights are at stake and because a Court order still left the Government with sufficient policy room to decide how to comply.[15] It held that its order was not an ‘order to create legislation’ because the Government ‘retains complete freedom to determine how it will comply with the order’.[16]

Conclusion

The Court concluded that:

‘Up till now the State has done too little to prevent a dangerous climate change and is doing too little to catch up, or at least in the short term (up to end-2020). Targets for 2030 and beyond do not take away from the fact that a dangerous situation is imminent, which requires interventions being taken now. In addition to the risks in that context, the social costs also come into play. The later actions are taken to reduce, the quicker the carbon budget will diminish, which in turn would require taking considerably more ambitious measures at a later stage, as is acknowledged by the State, to eventually achieve the desired level of 95% reduction by 2050’.[17]

The result of the Urgenda case is monumental. The Court of Appeal has found that the Government has and must uphold a duty of care to protect the citizens of the Netherlands against the real and imminent threats of climate change. In so doing, the Court has ordered that it must achieve a reduction of at least 25% (relative to 1990) by the end of 2020.

While there are major differences in the laws of the Netherlands compared to Australia (i.e. the application of a decision of the European Court of Human Rights in the Netherlands), there are also important similarities. Under the common law of torts, duty of care principles are applicable in Australia. So too, the Court’s dismissal of the ‘drop in the ocean’ argument whereby a government justifies inaction because its country’s emissions are minor in absolute terms should alert Australian politicians to the fact that the law is beginning to recognise that action on climate change requires a global, cooperative effort.

11 October 2018

Virginia Trescowthick, Leonie Kelleher, Hubert Algie


[1] The State of the Netherlands (Ministry of Infrastructure and Environment) v Urgenda Foundation (200.178.245/01) [27]. Full transcript available at: <https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2018:2610>.

[2] Ibid [46].

[3] Urgenda website <http://www.urgenda.nl/en/home-en/>.

[4] Ibid [38].

[5] Ibid [37].

[6] Ibid [43].

[7] Ibid [42].

[8] Ibid [45].

[9] Ibid.

[10] Ibid [30].

[11] Ibid [62].

[12] Ibid [59].

[13] Ibid [66].

[14] Ibid [67].

[15] Ibid.

[16] Ibid [68].

[17] Ibid [71].

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