A Green Court in The Netherlands: Stichting Urgenda v. The Netherlands

On the 24th of June 2015, the civil section of the Dutch court of The Hague, the Netherlands, ordered the Dutch government to adjust its environmental policies in order to reduce the collective greenhouse emissions of the Netherlands by 25% compared to 1990 by the end of 2020. News of this unusual judgment spread across the globe as it was the first time that a court ordered a government to step up its game on climate change. This post will provide readers with a summary of the judgment, as well as some thoughts on its merits.

Facts, Legal Issues and Arguments

The case against the Dutch State, more specifically the Ministry of Infrastructure and the Environment, was brought by a foundation called Urgenda. Urgenda is a citizen’s platform, which has as its main focus the transition to a more sustainable society and initiatives to prevent climate change. Additionally, Urgenda was authorized by 886 individuals to initiate this case on their behalf.

Urgenda requested the Court to declare inter alia that the joint volume of the current annual greenhouse gas emissions in the Netherlands is unlawful, that the Dutch State is liable for this level of emissions and, principally, that the Dutch State acts unlawfully if it fails to reduce the annual greenhouse gas emissions in the Netherlands by 40%, or in any case at least by 25%, compared to 1990 by the end of 2020. Furthermore, Urgenda requested the Court to order the Dutch State to reduce the annual greenhouse gas emissions in the Netherlands by 40%, or in any case at least by 25%, compared to 1990 by the end of 2020. Urgenda based its specific requests inter alia on international agreements, European Union instruments and multiple Dutch policy documents.

Urgenda argued that the current greenhouse emission levels leads to dangerous climate change, and that the Dutch State has the ability to effectively control and regulate such emissions. Subsequently, by maintaining high levels of greenhouse emissions and thus insufficiently mitigating climate change, the Dutch State violated its duty of care and acted unlawfully towards Urgenda. Furthermore, Urgenda argued that the State violated article 21 of the Constitution, imposing a duty on the State to ensure the livability of the country and to protect and improve the living environment. It also argued a violation of articles 2 and 8 of the 1950 European Convention on Human Rights (ECHR) guaranteeing the right to life and the right to respect for private and family life.

The Dutch State, on the other hand, argued that it had not acted unlawfully towards Urgenda. On the contrary, the State argued that the government has acknowledged the need for climate change mitigation and its policies are focused on this need. These climate policies do not violate articles 2 and 8 of the ECHR. In any case, there is no legal duty under national or international law for the State to take measures in order to achieve the reduction targets claimed by Urgenda. Furthermore, any court order to the State to adapt its climate policies would violate the government’s prerogative over environmental policies.

The Court’s Decision

The Court, first of all, reiterates that it does not possess an expertise in climate-related issues and that it will base its decision on those facts agreed upon by both parties. These facts concern data and current scientific knowledge which the State has acknowledged as true. Subsequently, the Court analyses these facts in order to establish the severity of the issue of climate change. The Court reviews the international agreements to which the Netherlands is a party and details the goals included in those agreements. Finally, the Court concludes that the current climate policies of the Dutch government are not at the standard deemed necessary by both climate science and international climate policies.

The subsequent questions which the Court needs to answer are whether the State failed to comply with its duty of care by not adhering to the reduction targets as established by climate science and international climate policies, and whether the State has a legal obligation towards Urgenda to adjust its climate policies in order to comply with international standards. The Court answers the latter question first, and concluded that no legal obligation of the State towards Urgenda can be inferred from either article 21 of the Constitution or articles 2 and 8 of the ECHR. It came to this conclusion on the basis that the international agreements on which Urgenda based its violation of article 21 of the Constitution only create obligations for the Netherlands vis-à-vis other states, and on the basis that Urgenda cannot be regarded as a direct or indirect victim as required by article 34 of the ECHR. Nevertheless, the Court argues that these articles are relevant for establishing the reach of the State’s discretionary powers and whether the State has violated its duty of care towards Urgenda. Indeed, the principles and goals that can be derived from international agreements are decisive for the limits within which the State can exercise its discretionary powers and the scope of the duty of care. The Court lists six such principles in total, relating to:

• The nature and extent of climate change damage;
• The foreseeability of such damage;
• The chance that hazardous climate change will occur;
• The nature of the acts or omissions of the State;
• The onerousness of taking precautionary measures; and
• The extent of the discretionary powers of the State, with due regard to public-legal principles.

With regard to the first three principles, the Court argues that climate change will have serious and irreversible consequences, which have been known to the State since at least 2007. These require the State to take preventive measures in order to protect its citizens. The high risk of climate change places a heavy duty of care on the State to prevent its effects. With regard to the fourth principle, the Court argues that the State has the power to control the collective emissions level of the Netherlands, and effectively controls these levels. In this regard the State plays a crucial role in the transition to a more sustainable society. With regard to the fifth principle, the Court states that mitigation measures, such as those requested by Urgenda, are the most effective and cost-efficient in order to prevent hazardous climate change. Finally, in relation to the sixth principle, the Court states that, even though the Dutch government has broad discretionary powers with regard to its environmental policies, these powers are not unlimited. The State has an obligation to protect its citizens by implementing suitable and effective measures. The freedom to select such suitable measures is limited by public-legal principles, for example by the international agreements to which the Netherlands is a party. These, for example, provide that developed countries should contribute more to emissions reduction than developing countries. Furthermore, there must be a proportionate balance of costs between the current and future generations.

Subsequently, the Court concludes that the State has a duty of care – more specifically a duty to take mitigation measures. As it has been established that the current government policy regarding mitigation of greenhouse emission levels does not comply with the necessary standards as established by climate science and international climate policies, the State has breached its duty of care and has acted unlawfully towards Urgenda. The Court therefore orders the Dutch State to limit the collective greenhouse emissions levels of the Netherlands, in order to reduce these levels by 25% in 2020, in comparison with the emission levels of 1990.

Concluding thoughts

At first, this judgment seems groundbreaking: a civil court that orders its national government to adjust its environmental policy to combat climate change – especially, as the Court itself admitted, without any independent expertise on the subject. Indeed, the question may arise whether such a conclusion would breach the trias politica of the Netherlands. This was exactly the argument of the State itself. Nevertheless, the Court is right in reminding the State that the trias politica in the Netherlands is more of a balance between powers than a strict division between these powers. Within this triangle, each power has its own tasks and responsibilities – the task of the judge being to offer legal protection and to settle disputes. The Court here tries to do both, while arguing that the order in question does not concern concrete measures. On the contrary, the State retains the discretionary power to decide how it will implement the order. Furthermore, it can be questioned how extreme this judgment actually is: the State has acknowledged the need for effective and efficient environmental policies which mitigate climate change and agrees with the facts that provided the basis for this judgment. There was essentially no dispute about either the facts or the need for action. The main question is: what happens next? Will the Dutch government silently adapt its policies to meet its obligations? Will it appeal the decision? Or will the government ignore this judicial order and leave Urgenda to sue for damages in five years’ time?