“The State should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts.”
On 24 June, 2015, the Chamber for Commercial Affairs of the Hague District Court ruled that The Netherlands is under a legal duty to cut greenhouse gas emissions by 25% within five years (Urgenda Foundation v. The State of the Netherlands).
The suit was brought by Urgenda, a public interest platform involved in the development of plans to prevent climate change. Urgenda requested the state to commit and undertake to reduce CO2 emissions in the Netherlands by 40% by 2020, as compared to the emissions in 1990. Urgenda’s claim argued that the state’s “capability to manage, control and regulate” emissions within its territory “means that the State has ‘systemic responsibility’ for the total greenhouse gas emission level of the Netherlands and the pertinent policy.”
The State Secretary for Infrastructure and the Environment acknowledged the need to do so but emphasized the need for collective action, and promised to “cooperate with national and international partners to launch and support initiatives to tackle this.” The court rejected this response as incompatible with the state’s duties under Dutch law.
On Urgenda’s Standing in Court
The court found that Urgenda had standing under Dutch law to represent local and foreign interests as well as those of future generations:
”[Since] Urgenda is defending the interest of a ‘sustainable society,’ it actually protects an interest that by its nature crosses national borders. Therefore, Urgenda can partially base its claims on the fact that the Dutch emissions also have consequences for persons outside the Dutch national borders… The term ‘sustainable society’ also has an intergenerational dimension.”
The Grounds of the State’s Obligation under Dutch Law
The court found that the state was not required under domestic law to follow international instruments such as UN Climate Change Convention. But it was expected to take them into account when it exercised its discretionary power when exercising its tasks. Similarly, the objectives laid down in those international instruments are relevant in determining the minimum degree of care the State is expected to observe:
“In order to determine the scope of the State’s duty of care and the discretionary power it is entitled to, the court will therefore also consider the objectives of international and European climate policy as well as the principles on which the policies are based.”
The court identified three main principles on which the international and Europeans policies were based upon: the fairness principle, the precautionary principle, and the sustainability principle. It opined:
“The principle of fairness … also expresses that industrialised countries have to take the lead in combating climate change and its negative impact. The justification for this, and this is also noted in literature, lies first and foremost in the fact that from a historical perspective the current industrialised countries are the main causers of the current high greenhouse gas concentration in the atmosphere and that these countries also benefited from the use of fossil fuels, in the form of economic growth and prosperity. Their prosperity also means that these countries have the most means available to take measures to combat climate change.”
Despite the minor, if not negligible, unilateral Dutch contribution to the reduction of global emissions, The court insisted on the state’s individual responsibility:
“After all, it has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change. Emission reduction therefore concerns both a joint and individual responsibility of the signatories to the UN Climate Change Convention. In view of the fact that the Dutch emission reduction is determined by the State, it may not reject possible liability by stating that its contribution is minor… that the Dutch emissions only constitute a minor contribution to global emissions does not alter the State’s obligation to exercise care towards third parties. Here too, the court takes into account that in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionate contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in the world.”
A Global Precedent?
According to a Guardian report (Dutch government ordered to cut carbon emissions in landmark ruling) representatives of environmental law groups expressed the hope that the ruling would shape the global legal playing field, and that other courts would adopt a similar stance. Serge de Gheldere, the president of Klimaat Zaak, which is pursuing an almost identical case to Urgenda’s in Belgium said that the judgment gave them “a lot of hope as it sets an incredible precedent. The government in Belgium will take a lot of notice of whats happened here today. This could be the first stone that sets an avalanche in motion.” See also here.
On the potential role national courts in tackling global environmental challenges and in general promoting global welfare by coordinating policies with other courts see my Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, 102 American J. Int’l L. 241 (2008); see also Quixotic Altruism or an Effective Investment? On the Incentives and Concerns with Unilateral Measures to Mitigate Climate Change.