Courts and Climate Change: Breakthrough for Judicial Activism in the Netherlands
The 24th of June 2015 was a historic day for climate litigation: the district court in The Hague ordered the Dutch government to reduce its greenhouse gas emissions by at least 25% by 2020 (as compared to 1990 levels). This is the minimum target set by the Intergovernmental Panel on Climate Change (IPCC). The court ruled that the Dutch government has to do more to avert the dangers caused by climate change, based on the State’s duty of care to protect and improve the living environment under Article 21 of the constitution. The court held that current climate policy, which would reduce emissions by 14 to 17%, failed to discharge the State’s duty of care and concluded that it “therefore acts unlawfully.”
This case, also known as the ‘Climate Case’, is a good example of the role of civil society in using legal avenues to hold the government accountable for its promises on climate change as the case was brought by sustainability foundation Urgenda. Furthermore, the Climate Case is the first time Dutch citizens went to court as co-plaintiffs (almost 900 in total) to demand the government to take action on climate change, dubbed by the initiators of the case as ‘crowdpleading’. Many activists working on climate litigation considered the ruling an important precedent that may trigger similar legal actions in other countries and encourage citizens to sue their governments in an effort to pressurise them to realise their climate promises. In the words of the Advocate-General of the Dutch Supreme Court: “Lawsuits may be the only way to break through the political apathy regarding climate change.”
The Climate Case is particularly interesting because it is the first climate liability suit in history that draws on human rights law to argue that the State must protect citizens against the adverse effects of climate change. In addition to the State’s constitutional duty of care, the claimants argued that under Article 2 (right to life) and Article 8 (right to private life) of the European Convention of Human Rights (ECHR) the State has positive obligation to protect its citizens against climate change by taking sufficient mitigating measures. Although the court held that Urgenda can’t directly rely on the ECHR because organisations cannot be victims of human rights violations, it did rely on Articles 2 and 8 as sources of interpretation for the state’s duty of care. The ruling does open up the possibility that not meaningfully targeting the reduction of greenhouse gas emission could constitute a human rights violation.
However, the momentous verdict in June was not the end of the story. At the beginning of September, the Dutch government announced that it would appeal the decision. This re-fueled the public debate on the issue. A group of international lawyers, scientists and scholars, including James Hansen of the Columbia University Earth Institute and Professor Henry Shue of the University of Oxford, sent the government a letter urging them not to appeal. In addition, the hashtag #GaNietInBeroep (‘#DoNotAppeal’) was trending on Twitter for several days in the Netherlands.
During a parliamentary debate on 24 September 2015, various opposition parties proposed a special ‘appeal in the interest of the law’ (Cassatie in Belang der Wet), which would expedite the case to the Supreme Court. This would imply that the case is not appealed on substantive grounds, but that the Supreme Court would only be asked to look at the consequences on constitutional grounds, specifically the issues it raises relating to the separation of powers, or trias politica, and the legitimacy of the court ruling on government policy. Nevertheless, the government decided to appeal on both substantive and constitutional grounds.
It remains to be seen whether the human rights-based verdict that the State has a legal obligation to protect citizens against climate change will be upheld. Politically speaking, the appeal can be seen as an indication of the Dutch government’s non-committal stance in the climate change debate. In the words of Climate Case initiator and director of Urgenda, Marjan Minnesma: “To appeal the outcome of this case only weeks before the start of the climate summit in Paris shows that the Dutch government is still not treating this issue with the urgency it so desperately needs.” In spite of the appeal, the Climate Case has placed climate change higher on the Dutch political agenda. The case also is an inspiring precedent for climate campaigners worldwide, demonstrating new pathways of accountability for climate change.