Courts and Climate Change II: Appeals Court Upholds Landmark Ruling in Dutch Climate Case
The Hague Court of Appeals has upheld its human rights-based landmark ruling in the historic Climate Case that orders the Dutch government to accelerate its reduction of greenhouse gas emissions. The decision came one day after the world’s leading climate scientists called for “rapid, far-reaching and unprecedented changes in all aspects of society” in order to limit global warming to 1.5°C, in the long-awaited climate change report of the IPCC (UN Intergovernmental Panel on Climate Change).
The Climate Case was brought by sustainability foundation Urgenda (‘Urgent Agenda’), which united almost 900 Dutch citizens as co-plaintiffs. In a statement to the Guardian, Climate Case initiator and director of Urgenda Marjan Minnesma said: “The Appeals Court’s decision puts all governments on notice. They must act now, or they will be held to account.”
In June 2015, the district court in The Hague ordered the Dutch government to reduce its greenhouse gas emissions by at least 25% by 2020 (compared to 1990 levels), which is the minimum of the 25-40% target set by the IPCC. The Dutch government appealed, arguing that the policy decision on how to reduce greenhouse gas emissions is a “political question” that should be addressed by the government, not the judiciary (§30). It also argued that the Dutch emissions, in absolute terms, are limited, that the Netherlands cannot solve the global issue of climate change alone, and pointed out that there are various policy trajectories to reduce emissions, so that a reduction of 25-40% by 2020 is not absolutely necessary (§30).
Urgenda argued that, even though climate change is a global problem and the Dutch government can only take measures to reduce the Dutch emissions, the Netherlands has benefited since the industrial revolution from the use of fossil fuels, still has one of the highest carbon emissions per capita in the world, and has ratified the UN Framework Convention on Climate Change, which includes the principle of equity that developed countries should take the lead in combating climate change (Art. 3.1). This makes what Urgenda refers to as the State’s “procrastination” (failure to pursue a more ambitious emission reduction by 2020) unlawful and in breach of its duty of care under Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention of Human Rights (§28-29).
Jurisprudence of the European Court of Human Rights has determined that Article 8 may apply to environmental matters, when an act or omission has a negative effect on the home or private life of a citizen, and when that negative effect has reached a minimum level of severity. The Dutch court concluded that when the State knows of a real and immediate danger, it has to take preventive measures to prevent its impacts as much as possible (§43). After considering a range of scientific prognoses of the impacts of climate change, the court concluded that there is a real threat of dangerous climate change, which puts citizens at a severe risk of loss of life and/or disruption of family life, and that the State has the duty to protect against this real threat (§45).
The court rejected each of the State’s claims (§54-70). With respect to the separation of powers argument, it argued that the judiciary was not replacing the executive power, but merely applied provisions of the European Convention, which is part of the Dutch legal system, and even takes precedence when Dutch law is in conflict with international human rights law (§69).
Since the 2015 ruling, the Dutch Climate Case has become a symbol of success for environmental activists involved in strategic litigation on climate change. A well-known suit that followed the Dutch case was Juliana v US, in which a group of youth sued the US government alleging that, through the government’s affirmative actions that cause climate change, it has violated young generations’ constitutional rights to life, liberty, and property, and failed to protect essential public trust resources. This new decision of the Appeals Court is an important precedent that strengthens the emerging body of jurisprudence on State accountability for lack of action on climate change.