Climate Change Litigation:
is it for real?
A comparative study into climate litigation in Pakistan and
the Netherlands using the MLP framework
MA Thesis
Name: Thijs Maartens Student number: 10789405 Supervisor: dr. Robin Pistorius Second reader: dr. Gordon Arlen Word count: 18.037 words
Abstract
The effects of climate change are started to become apparent in recent years. States have responded insufficiently to the climate problem. Climate change litigation has emerged as a tool to address the insufficient response to climate change. Using a multilevel perspective on socio-technical regime transitions to map power relations between the state and the climate case, this research examines the transformative effect of two climate cases on the
environmental policy of the national government. The two cases that have been chosen are most different; the Netherlands and Pakistan. The research concludes that the state is crucial to climate change litigation. The state’s involvement in both the process and implementation mean that institutional strength is crucial to the transformative power of climate change. In institutionally weak countries climate cases have an effect on the environmental policy of the state. However, this effect is not transformative since it cannot be incorporated into the state’s institutions. Despite the difference in transformative power both cases were frontrunners in rights-based litigation, claiming state inaction on climate change is a human rights violation. This approach was successful in both cases. The growing amount of cases that have followed those in the Netherlands and Pakistan points to the existence of a global judicial space for climat
Acknowledgement
I want to thank several people who have come to my aid during the writing of this thesis. First of all I want to thank professor Pistorius for introducing me to the topic of climate change politics. Although I had a passion for climate change before writing this thesis, I knew very little about the topic and the politics that surround from an academic perspective. I also want to thank professor Pistorius for his feedback during the writing process. Secondly, I want to thank my father, Antoine, for providing me with useful insights during the writing process. His experience working for Urgenda was what first put me on the topic of climate change litigation and the topic has not disappointed. Lastly, I want to thank professor Gordon Arlen for taking the time to read my piece as a second reader.
Table of Content
Abstract 1 Acknowledgement 1 Table of Content 2 Abbreviations 4 1. Introduction 51.1 Introduction to Problem Field 5
1.2 The Emergence of Climate Change Litigation 6
1.3 The Transformative Potential of Climate Change Litigation 6
1.4 Introduction to case studies 7
1.5 Research question 9
1.6 Relevance 9
1.7 Thesis Layout 10
2. Theoretical Framework 11
2.1 Landscape factors: the structure of the climate problem 12
2.1.1 Climate Change as a landscape factor 13
2.1.2 Structural inability of states to act on Climate Change 14
2.1.3 Transformative Climate Change vs. Constitutive State Inability. 15
2.2 Regime factors 16
2.2.1 Intentional and Unintentional ineffective environmental politics 17
2.2.2 Symbolic Politics: The Adaptation Gap 18
2.2.3 Relation between Judicial Branch and Climate Change Litigation 19
2.3 Niche Factors; The transformative Power Judicial Niches 19
2.3.1 Climate Cases and Environmental Human Rights 20
3. Methodology; a Comparative Analysis of Climate Cases 21
3.1 Case Selection 21
3.2 Pitfalls 23
3.2.1 The Limitations of Comparative Analysis 23
3.2.2 Theoretical Limitation of MLP 23
3.3 Defining the Success of Climate Change Litigation. 23
3.3.1 Defining the Indicator of the Success of Climate Change Litigation 24
3.3.2 Context of the Cases and Assessment Criteria 24
4.1.1. Geographical context and Climate Change 25
4.1.2 Economical context and Climate Change 26
4.2 Regime: Political Situation and Symbolic Climate Response 28
4.2.1 Environmental Policy: Priorities 29
4.2.2 Reduction goals 30
4.3 Niche: Litigation Case 31
4.3.1 The Creation Judicial Space for Climate Change Litigation 32
4.3.2 Grounds for Litigation 33
4.3.3 The verdict 34
5. Pakistan 35
5.1 Landscape: Pakistan and Climate change 35
5.1.1 Geographical context and climate change 35
5.1.2 Economical context and climate change 36
5.2 Regime: Political Situation and Environmental Response 37
5.2.1 Environmental Policy; Priorities 37
5.2.2 National Climate Change Policy 38
5.2.2. Weaknesses: Policy and Institutional Viability 40
5.2.2.1 Policy Weaknesses 40
5.2.2.2 Institutional Weaknesses 40
5.3 Niche: Judicial Space and Climate Case 42
5.3.1 Human Rights and the Pakistani Legal System 42
5.3.2 Human Rights Advocacy in Pakistan 42
5.3.3 Climate Change Litigation Case 43
5.3.3.1 Grounds of Litigation 43
5.3.3.2 The verdict 44
6. Analysis: Effects of Climate Cases 45
6.1 Netherlands: continued procrastination 46
6.2 Pakistan: From Nothing to Something (to nothing?) 47
6.3 MLP and the transformative power of climate change litigation 50
6.3.1 Landscape: Climate change 50
6.3.2 Regime: Institutional Strength Vital 51
6.3.3 Niche Factors; Global Space For Climate Change Litigation. 52
7. Conclusion and Discussion 54
Abbreviations
BSA Burden Sharing Agreement
CCC Climate Change Commission
EA Energy Accord
ECHR European convention on human rights
ETS Emissions Trade Scheme
EU European Union
EU2020 EU Strategy 2020
FICCP Framework for Implementation of Climate Change Policy
GoP Government of Pakistan
HRW Human Rights Watch
IPCC Intergovernmental Panel on Climate Change
MCC Ministry for Climate Change
MLP Multi Level Perspective
NCCP National Climate Change Policy (The 2012 Pakistani Framework)
NDC Nationally Defined Contribution
PBL Netherlands Environmental Assessment Agency
SCCC Standing Committee on Climate Change
UN United Nations
UNDP United Nations Development Programme
1. Introduction
1.1 Introduction to Problem Field
The effects of climate change are starting to manifest itself across the globe. The amount and intensity of extreme weather events has increased. Intense floods and droughts will occur more frequently, especially in developing countries (Mumtaz, 2018, p. 526). A structural increase in temperature has also already happened. To contain the devastating effect of global warming a temperature rise in excess of 1,5 to 2 degrees Celsius must be avoided If not, the result will be severe and lasting damage to the liveability of the planet. Large parts of the planet will become uninhabitable as a result rising sea levels and droughts will cause food and water shortages (IPCC, 2014).
As the gravity of the climate problem has become clear, so has the response of
national governments.The body of climate legislation has grown to over 1200 compared to 60 in 1997 (Nachmany et al., 2017, p. 8) In addition, national governments are plotting
sustainable futures. Internationally, the pinnacle of growing environmental legislation has been the Paris Climate Accord. Currently, the Accord has been signed by 195 UN-members who together pledge to keep global temperature rise below 1.5 degrees Celsius (Art. 2, Par. a). On the national level, governments around the world have adopted comprehensive frameworks over the last decade, which stipulate ambitious goals that guide the national transition to a sustainable future (UNEP, 2018, p. 7).
However, on the 16th of September 2018 the Guardian published a letter signed by 238 university professors condemning the continued focus of European policymakers on economic growth. The piece, titled ‘the EU needs a stability and wellbeing pact, not more growth’ stipulates the incompatibility of economic growth with the environmental policy required to stave of dangerous effects of climate change. Nonetheless, the realisation of economic growths remains the focus of nation states and international organizations (the Guardian, 2018).
The result of this has been an overall insufficient effort by states to combat climate change. UNEP reports that a tripling in effort is required in order to stave off a dangerous rise in temperature (UNEP, 2018c, xv). This means that either the contents of the increasing amount of environmental legislation is symbolic or that it is difficult for states to implement
the goals set out in these policies. The gap between internationally agreed upon goals and the reality of continuing environmental degradation has been documented since 2014 in
‘Adaptation Gap Reports’ by the United Nations Environmental Program (UNEP). These reports outline an increased anchoring of national and international environmental
commitments into national law. At the same time, the Adaptation Gap Reports show insufficient realization of environmental goals (UNEP, 2018a, p. xii & pp. 5-10).
1.2 The Emergence of Climate Change Litigation
The clash between the climate problem and the lack of state action has created new legal opportunities for civil society to use public interest litigation as a tool to stimulate national environmental policies. The cases contested in this space give rise to the central concept of this thesis; climate change litigation.
The use of public interest litigation in this way is not groundbreaking. As van Geel points out that: “Litigation is often employed strategically as a motor for social change, and particularly aims to advance the cause of minority or disadvantaged groups, or individuals who have no voice” (2017, p. 57). Cases over environmental protection are also not a novel concept. However, until 2015 they primarily challenged the pollution of local ecosystems within the national territory (Peel & Osofsky, 2018, p. 39). In 2015, the Urgenda Foundation was the first to successfully challenge the Dutch government over the entirety of its approach to climate change being insufficient. Since 2015, the number of litigation cases has grown to 884 as of March 2017. Not all of these cases challenge government responses to climate change, but these types of litigation cases are increasing in number (UNEP, 2017, p. 10).
1.3 The Transformative Potential of Climate Change Litigation
Litigating national governments on their insufficient climate policy is a rich but still largely untapped vein. In the wake of the Urgenda Case, Michael Burger, director of the Sabin
Centre for Climate Change Law observed that “judicial decisions around the world show that many courts have the authority, and the willingness, to hold governments to account for climate change” (Sabin Centre, 2017). The grounds on which national governments are challenged have become increasingly based on a violation or insufficient protection of constitutional or human rights by the state (Peel & Osofsky, 2018) Courts have been
receptive of climate cases and have practised judicial activism to influence executive branches over insufficient climate action (Sabin Centre, 2017)
The verdict of these climate cases can stimulate environmental policy of national governments. The transformative power of climate change litigation can be rephrased as the amount of influence the verdicts can exercise on state institutions responsible for this environmental policy. The influence of climate change litigation can be labeled transformative if it not only results in a stimulation of climate change policies but is
incorporated into the state in a more structural manner (Avelino & Rotmans, 2009, p. 553).
1.4 Introduction to case studies
The transformative power of climate change litigation will be explored on the basis of two early climate cases in very different countries; The Netherlands and Pakistan. These two countries can be considered polar opposites in many ways.
Firstly, the effects of climate change are and will be different for the two countries. Currently, Pakistan is already experiencing a multitude of climate related disasters, both structurally and incidentally. Examples of this are rising temperatures, which endanger the country’s agricultural sector, as well as as an increase in floods. As a result of abnormally heavy monsoon rain, a heavy flood in 2010 affecting more than 20 million people (GoP, 2013, p. 84). Because of its geographic location as well as its expertise and resources the Netherlands has not yet experienced climatic events similar to Pakistan. The different experience of climate change is reflected in the countries’ approach to climate change. Pakistani environmental policy prioritizes the ex-ante adaptation to the inevitable effects of climate change (GoP, 2012). Conversely, the Dutch policy is more focused on the ex-post mitigation of climate change. Although there are adaptive programmes such as ‘Room for the River’, the Dutch environmental is centred around emission reduction goals. (PBL, 2012).
More notable with regard to the emergence of a space for climate change litigation is the extreme political difference between the Netherlands and Pakistan. Pakistani democracy is underdeveloped compared to Dutch standards. The working of its institutions are flawed by corruption, with little accountability for such practices (Transparency International, 2014). When faced with these deficiencies, the government uses force to silence critique (Human Rights Watch, 2019) Also of importance is the judicial space in both countries. In Pakistan
the freedom to challenge the government is decisively smaller than in the Netherlands. In the 1980s the law of the Pakistan was Islamized following a strict interpretation of the Koran. This has resulted in a restricted access to basic human rights for minority groups, especially women (Rehman, 2017). Similarly to political decent, Human Rights Watch notes that; “The government continues to muzzle dissenting voices in nongovernmental organizations (NGOs) and media on the pretext of national security” (Human Rights Watch, 2019). This makes the emergence of a climate case in Pakistan notable in its own right. The legal freedom for civil society in Netherlands contrasts starkly with Pakistan. Legal space in the Netherlands is not suppressed by the national government. The route for civil society to litigate in the Dutch legal system is much more negotiable, requiring only a solid claim and the resources to pursue litigation (van den Broek & Enneking, 2014, pp. 78-80).
Despite these differences the climate cases of both countries shared notable similarities. Both cases challenged the insufficient action on climate change and were founded on the violation of human rights by national governments. In Pakistan, farmer Ashgar Leghari successfully litigated the government over their insufficient implementation of the 2012 National Climate Change Policy (NCCP) (Ashgar Leghari vs Federation of Pakistan etc, 2015). The basis of the Urgenda case was more complex. Its lawyer ceased on a 1965 lawsuit in which a men who had fallen into a trapdoor sued the one who had left it open. The case went up to the Dutch high court who ruled that if a danger is known, reasonably likely to occur and there are opportunities to curb the danger, then the party who does not act on these opportunities can be found to be in the wrong. (Urgenda, 2013, p. 98). By
acknowledging the dangers of climate change but not acting upon them the state had
committed a similar offence. A clear difference was the intended goal of the two cases. The Pakistani case aimed to revive the latent NCCP. The Urgenda case aimed to set a more ambitious target by which the Dutch government had to abide. On the basis of climate research by the UN’s intergovernmental panel on climate change (IPCC) the court ordered the state to decrease emissions between 25 and 40% before 2020 (Stichting Urgenda vs De Staat der Nederlanden, 2015).
1.5 Research question
From the previous section it emerges that the judicial space for climate change litigation has emerged in two vastly different countries. The two verdicts imply a necessity for both states to structurally incorporate the verdict into their environmental policy. From this emerges the central question of this thesis;
Has climate change litigation transformative power and to what extent?
The climatic and political differences between the two countries could result in the cases having a different amount of transformative power. Two sub-questions deal with the previously mentioned differences between the two countries;
● Is the transformative power irrespective of the government’s approach to climate change?
● Does a countries development level influence the extent to which climate change litigation can exert transformative power?
1.6 Relevance
There are several reasons why this research is relevant at this point in time, both societal and academic.
As stated, the public demand for effective climate policy is increasing, while a gap between commitments and policy exists. Additionally, the grounds for litigation is changing towards the violation of human rights. Judges seem to be receptive of this new type of litigation. This thesis could confirm the growing legal space for climate change litigation as well as confirming it as a tool to stimulate government policy.
From an academic perspective too, the potential of climate change litigation has received insufficient attention. The theoretical framework will expand on social-technical transition frameworks that will be used to structure the thesis. A critique of this theory is that is used too one sidedly. Most studies use social-technological transition frameworks to look at the development of niche technologies (Lawhon & Murphy, 2011, 355). I will use the framework to examine judicial niche developments. The transformative potential of judicial niches in transition theory is currently a gap in the literature. Therefore, this thesis could
contribute to a better understanding of the use of social-technological transition frameworks to study judicial niches.
1.7 Thesis Layout
The thesis will be structured as follows. After this introduction, chapter two will outline the theoretical framework that guides the research. Chapter three addresses the methodological approach of the thesis, as well as its limitations and pitfalls. The following two chapters expand on the countries them as well as the climate change litigation cases. Following, conclusions on the transformative power of climate will be made on the basis of an analysis both cases combined with different context of the countries they take place in. The final chapter will place some closing remarks on climate change litigation along with an evaluation of the research and the avenues it opens for new research.
2. Theoretical Framework
The aim of this theoretical framework is to provide a structure guiding the interpretation of the effects of climate cases later in the research. The need for this structure stems from the fact that both the actual procedure in court as well as the implementation of the verdict resulting from that procedure are both the responsibility of the state. Therefore the political environment in which the proceedings take place have a bearing on both the procedure and the implementation of the verdict. The environment in which climate cases take place is shaped by two clashing factors; (1) the growing concern over climate change versus established economic structures and (2) state inaction on climate change versus growing public concern over climate change.
The multilevel perspective on socio-technical regime transitions (referred to as MLP) provides a tool to map the interaction between these factors across three descending levels; landscape, regime and niche. The landscape and regime level of MLP provide both a
structural frame as well as the norms and rules that shape the context in which climate cases, existing on the niche level, take place. (Lawhon and Murphy, 2011, p. 355). On the niche level civil society develops socio-technical innovations. MLP maps the influence of, in the original theory, technological niches on the regime level. Through a disruption of the status-quo (e.g. as a result climate change) these niche innovations can be popularized and eventually become part of the regime level. (Lawhon & Murphy, 2011, pp. 354-357). The growth and acceptance of electric cars in the Netherlands is an example of a niche innovation becoming mainstream.
In this research the socio-technical innovations of the original theory will be
substituted for climate change litigation. The climate cases of the Netherlands and Pakistan are considered niche innovations in this research. Similar to the original theory, MLP maps the effect of climate cases on the niche level with the environmental policy created on the regime level.
As stated, MLP differentiates between three descending levels; landscape, regime and niche. The division in three levels serves to examine the relation between them, in the words of Lawhon and Murphy; “The levels in the framework are viewed as heuristic, analytical concepts, rather than essential or containerized categories, and provide a means to focus on
the interlinkages between a diversity of actors” (2011, p. 357). Each of the three levels of MLP will be expanded upon in order to properly define their use within this research. Figure 1 provides as schematic overview of what will be discussed in the theoretical frameworks. The three levels of MLP are represented, as is the influence of the levels on each other.
(figure 1; the potential transformative power of climate litigation in a multilevel system) 2.1 Landscape factors: the structure of the climate problem
The landscape level is the most abstract level of MLP. Landscape factors are composed of “cultural and normative values, broad political coalitions, long-term economic developments, [and] accumulating environmental problems” (Geels, 2004, p. 34). Landscape factors shape the structure of contemporary society through these values. Framing our values create frames which shape our outlook. Framing allows landscape factors to exert influence. Additionally, this influence is fairly consistent over time because the influence they exert on lower levels forces actors to act according to the frame, which further entrenches them in a society’s belief system. This circle can be broken through a disruption of the status-quo (Lawhon & Murphy, 2011, p.357). In the following section I will introduce two landscape factors that are relevant to the development of climate change litigation. The importance of growth as a leading factor
in economic policies and its incompatibility with climate change causes and human well-being.
Since the 1970s the understanding of the impact of greenhouse gas emissions on the earth has grown. Despite certainty that continued unregulated emissions will be detrimental to the earth, states around the world have taken insufficient action to decrease emissions. This lack of environmental action is in part the result of persistent economic practices, most
import of which is the continued prioritization of economic growth in policy. Growth in the current economic system is linear, meaning production is ‘cradle-to-grave’ (Braungart, McDonough and Bollinger, 2007, p. 1338). A focus on economic growth on the basis of this ‘cradle-to-grave’ system clashes with the climate change.
Nonetheless, the effects of climate change are becoming clear and societal awareness of climate change has increased as result. Climate change litigation has emerged in part because of societal concern over climate change. Lead litigator of the Urgenda case Roger Cox was first inspired by ‘An Inconvenient Truth’ (Mommers, 2019). This demonstrates that the levels in MLP are interlinked; “What happens in these niches is very much related to the other levels, but distinct as well given the uniqueness and scale of the ‘experiments’ that go on within them” (Lawhon and Murphy, 2011, p. 358).
These two landscape factors exert influence on the lower regime and niche levels and characterize the interaction of these two levels with one another.
2.1.1 Climate Change as a landscape factor
Accumulating environmental problems have made it impossible to ignore the dangers of climate. Climate change has therefore become a landscape factors as defined in the MLP framework. Since the 1970s, concern over climate change has gradually anchored itself, resulting in the current situation where; “unprecedented knowledge about environmental change and [...] environmental campaigning have established an unprecedented societal awareness of the multiple sustainability crisis” (Blühdorn, 2013, p. 20).
Increased scientific understanding of climate change is to a large extent responsible for current awareness, as well as placing the arrangement of contemporary society at the centre of the problem. Through the 1970s understanding of anthropogenic induced climate warming expanded. In 1972, the Club of Rome published the ‘limits to growth’ report, a seminal report in environmental studies. This report was groundbreaking in stipulating the
notion that the “essential problem is exponential growth in a finite and complex system” (1972, p. 145). It linked economic growth to the climate problem (Connolly, 2003, p. 50). With nation states being the economic motors of the world this also placed them at the centre of the problem. Through the 1980s consensus formed on the relation between emissions and global warming. More recently, some of the scientific predictions on climate change have began to manifest themselves. This increases the pressure on nation states as the primary actors in the contemporary world order act on climate change.
The inescapability of climate change that follow scientific findings as well as the acceptance of climate change in politics means that in the Netherlands, as well as in Pakistan national government have recognized and accepted the inescapable effects of climate change. This is not a guarantee for political action. As Gupta states; “Scientific information is not automatically translated into political decisions, but goes through a complex process in which stakeholders and decision makers interpret the information and negotiate with each other.” (2011, p. 320). Still, the incorporation of climate change in society and politics by both countries means that climate change has become a landscape pressure in both the Netherlands and Pakistan.
The growing concern over climate change led to a growth in civil society organizations committing themselves to protecting the environment. Membership for environmental organizations of every kind has been growing continuously since the 1960s (Connolly, 2003, p. 85). Similar to most movements, the environmental movement
institutionalised its activities over time. Large environmental organizations lobby national governments for influence. In national governments climate change manifested itself through the emergence of green parties in the parliamentary system. Backed up by scientific findings these groups and parties have created space for climate change on the political agenda (Ibidem, pp. 87-88).
2.1.2 Structural inability of states to act on Climate Change
Despite the growing space for climate on the policy agenda, states have insufficiently responded to the climate problem. On the landscape level of the MLP model I will identify two fundamental problems explaining in which this lack of action is grounded.
is the capitalist system, in which securing economic growth is a central task of contemporary nation states (van der Heijden, 2017, pp. 10-11). In the current economic system this growth is linear; “raw materials are extracted from the environment transformed into products and eventually disposed of” (Braungart, McDonough and Bollinger, 2007, p. 1338).
Environmental action of states in a system of linear economic growth therefore focuses on a minimization of the environmental impact in the production while maintaining maximum economic growth. However, as Braungart et al. state; “Within the context of a system of cradle-to-grave material flows, however, the goal of zero is inherently unreachable”, resulting in a goal to be “less bad” (Braungart, McDonough and Bollinger, 2007, pp. 1338-1340). States keep operating within this system because an economy based on a circular model would require a fundamental reorganisation of the economy (ibidem, p. 1343). The centrality of growth in state’s economic policies necessitates environmental action but at the same time inhibits its feasibility.
A second structural obstacle is political in nature. The transnational nature of climate change further inhibit state action. The effects of climate change impact many countries, but the problem also requires a transnational effort to combat its effects, no country can mitigate these effects on its own. This makes climate change a collective action problem, more commonly known as the ‘tragedy of the commons’ in environmental studies (Raihani & Aitken, 2009 pp. 47-48 & Hardin, 1968, p. 1245). All countries benefit from the reduction efforts of one country, creating: “severe incentive problems arise for governments that are trying to maximize their net economic benefits.” (Böhringer and Vogt, 2004, p. 597). This discourages individual countries from reducing emissions.
2.1.3 Transformative Climate Change vs. Constitutive State Inability.
As can be deduced from the previous sections, there exists an a clash between measures needed to fight the climate crisis and state's inability to implement those measures.
The continued focus on economic growth of governments is embedded in the
institutions and structures of states. These institutions and structures are defined as “rules and agreements (e.g. laws, norms or traditions), while structures include organizational and physical infrastructures” (Avelino & Rotmans, 2009, p. 553). The power they exercise on lower levels is constitutive. Constitutive power comes from the control to distribute government resources that these institutions have.
Climate change has a transformative influence on the established government structures and institutions. This transformative influence challenges the established distribution of resources and seeks to redistribute them (Ibidem, p. 561). The measures required to combat the climate crisis are incompatible with current economic structures. Although the climate crisis requires circular economics based on reduce, reuse and recycle, existing economic processes are linear and aimed at creating waste, short lifespan products that need to be replaced often. It is the end of acceptance of this economic structure that constitutes the basis for climate change litigation.
2.2 Regime factors
Landscape factors influence “the rules, norms and conventions that shape the behaviour of the regime’s participants” (Lawhon & Murphy, 2011, p. 357). The regimes that result from this influence also shape relations between different parts of society. Most important to this research; the relation between the state and civil society actors. (Ibidem, p. 358). In this research the state is the primary regime actor.
The actions of the state can partly be explained on the basis of both landscape factors discussed in the previous section. The influence of landscape actors is visible in the
tremendous increase in climate legislation that has been adopted since the 1970’s. The growth in legislation has also provided the space for civil society to challenge the state on its
environmental policy, which judiciaries have embraced. However, an economic system based of growth still persists and international agreements in which states agreed to pool efforts have broken down (e.g. the Kyoto Protocol). The overall result is a insufficient action on climate change. As stated, UNEP adaptation gap reports indicate that the increase in legislation does not translate in a sufficient response in state action.
The insufficient response to climate change on the state level breaks down in actions that can be attributed to MLP and actions that fall outside the explanatory capability of MLP. The most important state response that can be attributed to MLP is symbolic environmental politics. The complexity of judging policies to be symbolic will be expanded upon. State environmental policies that have proven ineffective ex post cannot always be determined to have been symbolic. For example, environmental policy could have failed as a result of the dysfunctioning of the institutions that were tasked with implementing the policy.
As stated, growing environmental concern provided space for civil society to
challenge the state. This space is the result of judicial branches of national governments being receptive of climate change litigation. I will introduce the importance of judicial activism to the effects of a climate case in this chapter.
2.2.1 Intentional and Unintentional ineffective environmental politics
How can the insufficient national response to climate change be reconciled with the increased amount of environmental legislation within the MLP framework? Clashing landscape factors can result in a symbolic response on the regime level. Environmental policy is symbolic when policies “despite ambitious officially declared objectives are designed to remain ecologically ineffective” (Newig, 2007, p. 277). However, it is complicated to judge a policy as to be completely symbolic because the content in which is environmental policy is created and implemented has to be taken into account when judging it to be symbolic.
In the context of MLP, symbolic environmental policies are the result of regime actors simulating change will keeping in line with the status quo. Policies created in this vein; “encompass those pieces of legislation which are not intended to be [...] effective but which are enacted with certain political-strategic intentions” (Newig, 2007, p. 280). In the case of this research the goal would be for state actors to simulate action on climate change. For example, symbolic environmental foreign policy has been demonstrated by Cass to be used to ”manage a state’s identity in the eyes of both its international partners and its domestic
public” (2008, p. 466). Newig rightfully points out that in this definition, symbolic politics are created from “an ex ante perspective”, where it has to be taken into account “what the responsible actors knew, intended and could have known” (2007, p. 279).
However, MLP cannot always be applied in such black and white manner in order to judge policy to be symbolic. The effect of environmental policy cannot be judged in isolation. Often, legislation is judged to be ineffective ex post, but was created with good intentions (Ibid.). Meaning these policies were not symbolic or enacted for political-strategic intentions, they just did not work. Additionally, policies can also have partial success, with some of the goals being realized. Dysfunctional policies can be the result of a whole host of reasons, such as insufficient institutional strength or funding. By separating the substance of policies from the political strategy that accompanies them and looking identifying the context in which policies are implemented, the extent to which policies are symbolic can be examined.
When applied to a broader level, symbolic politics can be considered an “instrument for managing rather than resolving environmental problems” (Newig, 2007, p. 277). The existence of the gap between state environmental commitments and their lack of realization comes forward from UNEP reports. These reports indicates that symbolic environmental politics are widespread (UNEP, 2018a, p. xii). In the two cases of this research, the actions of both the Netherlands and Pakistan will be examined to indicate to which extent they were symbolic prior to the climate case.
2.2.2 Symbolic Politics: The Adaptation Gap
The adaptation gap is a discrepancy between the environmental targets set by the international community and the realization of these targets.
In the 2015 Paris Agreement countries committed to “developing or enhancing
relevant plans, policies and/or contributions, and to make progress over time” in order to keep temperature increase below 2 degrees Celsius. This goal is to be realised through the
implementation of national policies, as well as reporting on progress to the UN. To this end countries have created long term adaptation goals and visions, consisting of goals that are “aspirational, qualitative, quantitative or a combination of all three – to be attained by 2030, with some going up to 2050”. (UNEP, 2018a, p.7)
Despite the countries committing to this limit, as well drafting plans to not exceed a temperature rise of 2 degrees Celsius, UNEP reported that:
“The ambition must be to roughly triple current efforts to get the world on track towards achieving the goal of the Paris Agreement of limiting global warming to well below 2°C and increased around fivefold for a 1.5°C scenario (UNEP, 2018b).”
Additionally, the UNEP mentions that there is a discrepancy between the progress that countries report to the UN and the conclusions of studies into the environmental policies of states (UNEP, 2018a, p. xii). This demonstrates the existence of a discrepancy between commitments and policy. In light of the seemingly increasing efforts on climate change worldwide this indicates that symbolic politics are a widespread state response to climate change and that climate change policies remain ineffective, be it intentional or unintentional.
2.2.3 Relation between Judicial Branch and Climate Change Litigation
Climate change does not only influence the executive branch of government. Climate change litigation interacts in particular with the judicial branch of governments. Razzaque notes that: “When a state’s executive institutions are weak or refuse to act on climate change, it can be a sensible strategy for civil society actors attempt to force change through the legal system” (Razzaque, 2008, p. 590). The number of climate cases has increased, indicating that judicial branches have been increasingly receptive of climate change where executive branches fall short (Sabin Centre, 2017). Part of the judiciaries increased receptiveness can be attributed to ‘judicial activism’ in the courts (Van Geel, 2017, p. 58). Van Geel points out the versatility of judicial activism as a concept, but I find two acts of activism he mentions important in
relation to climate change litigation; “(1) invalidation of the arguably constitutional actions of other branches, (2) judicial “legislation” (Ibid.). With both these forms of activism the
judiciary approaches the boundary of its mandate and purposefully influences the executive branch. Although judicial activism also occurs outside of the climate change arena, the courts activism demonstrates that the transformative influence of climate change penetrates state institutions.
2.3 Niche Factors; The transformative Power Judicial Niches
Lastly, The lowest level of MLP consists niche innovations. As stated the aim of these niches is to; “advance more sustainable alternatives to those present in the existing socio-technical regime” (Lawhon & Murphy, 2011, p. 357). With respect to climate change litigation this is an attempt to stimulate the action on climate change through the use of the legal system. Advancement of niche alternatives is aided by disruptions in the established system (Ibid.). As has been stated throughout, climate cases play into the disruption caused by climate change. The fact that effective climate change policy would require policies that are incongruent with contemporary establishment provides such a disruption.
Apart from unprecedented awareness, the emergence of climate change litigation can partly be tied to the expansion of grounds on which governments are challenged. Climate cases take an increasingly rights-based approach, whereby national governments are challenged on violation or insufficient protection of these rights (Peel & Osofsky, 2017). Expanded grounds for litigation are part of the innovative process of niches in MLP. In this
respect, each rights-based case contributes to ‘product development’, propelling the
development of climate change litigation. Additionally, grounds for climate change litigation have been expanded as a result of the environmental commitments made by national
governments. Failure to comply with these commitments provides a ground to litigate on. The use of these new grounds has seen climate cases on based on similar grounds in vastly different countries. So too, in the Netherlands and Pakistan. Although in the Pakistani case the insufficient protection of the population from the impact of climate change was crucial, both cases called on the responsibility for the government to uphold human and constitutional rights. Nonetheless, climate cases remain depended on the legal space afforded by governments for rights litigation. Especially, in Pakistan the fact there is judicial room for climate change litigation points to the growing importance of climate change.
2.3.1 Climate Cases and Environmental Human Rights
The expansion of litigation grounds stems from an increased emphasis on the link between climate change and human rights. This link was acknowledged in the Paris Accord. (Peel & Osofsky, 2018, p. 39). The result of a link between the two is an increase in the amount of climate cases that take a rights-based approach. Similar cases based on climate rights have emerged worldwide. Peel and Osofsky go as far describing the increase in the amount of cases as a new judicial movement (2018, p. 36). Both cases in the Netherlands and Pakistan were in part grounded on the violations of environmental rights of the population by the governments. This is a change from the majority of cases being based on the failure of
governments to adequately consider the effects of their policy on the environment (Ibidem. p. 38).
The fact that climate rights violations are used in an increasing amount of litigation cases is especially interesting in this respect. This points to the interplay of factors in MLP. The broad environmental awareness and demands that results from worsening climate
disasters forces the anchoring of environmental rights into policies made on the lower regime level, such as the Paris Accord. In turn, these environmental rights are used in climate change litigation in order to stimulate climate policy.
3. Methodology; a Comparative Analysis of Climate Cases
This research will describe the effects of two similar climate cases on two vastly different countries. The Netherlands and Pakistan are different in a great number of things, but the key similarity is the climate cases of both countries that resemble one another in grounds and motive. The choice for these countries will be expanded upon. Comparative research designs have been used in case studies of similar events happening in countries that are otherwise ‘most different’ (Halperin & Heath, 2017, pp. 221-223). The selected cases of such a design are different in most respects, but “the key independent variables of interest of interest are the same for each country” (ibid.).
Description of the effects of the climate cases will be structured by the MLP-framework to the extent that this is possible. By basing the analysis on the
MLP-framework, effects of climate change litigation that are similar in both countries can be highlighted. Conversely, effects that are peculiar to one country can also be pointed out. If similarities come to the fore, these can contribute to a description of the extent and
circumstances of transformative power of climate change litigation. Anckar points out that: “when an association between the independent and the dependent variable is found in two varying contexts, the more the analytical contexts differ in terms of systemic factors, the higher the number of systemic variables that can be disregarded” (2008, p. 391). The strength of a research that studies the effects of climate change in two extremely different contexts is that if similarities are found it is more likely that these can be attributed to the climate case. Such similarities would point to climate change litigation having transformative power contributes irrespective of political context.
However, designing the research in this manner also has downsides. In the following sections I will expand on case selection, the most important aspect of a most different research design, as wells the pitfalls and limitations that this design brings.
3.1 Case Selection
Case selection is of great importance to a most different case design as it influences the validity of the research, especially in small-N studies. (Halperin and Heath, 2017, p. 223).
Although a complete avoidance of selection bias is impossible, consensus that selecting cases on the basis of “the characteristics on the independent variable” minimizes selection bias has been “elevated to almost law-like status” (Ibid.). Therefore, in this research cases should be selected on the basis of having similar climate cases, not on the basis of these climate cases having similar effects. I settled for the Netherlands and Pakistan because the cases differ as much as possible in all respects except for their climate cases.
The climate cases of the Netherlands and Pakistan are similar in what is litigated as well as the ground on which the government is challenged. The Netherlands and Pakistan were both at the frontrunners in climate change litigation that challenged the insufficient climate action of the state in its entirety. In both cases the complaint was a lack of action to fulfill previously made commitments, although the ambition of these commitments differed. Both also were among the first to have a rights-based approach. The insufficient protection of human rights was used as a ground for litigation in both cases. The courts in both states have been receptive of climate change litigation.
However, the states which the cases challenge are vastly different. They lay at opposite ends of the development spectrum and have vastly different functioning political institutions. Politically, the institutional organization as well as their functioning is different. The countries are at the opposite spectrum of the Institutional Quality Index, which measures the functioning of the countries institutions on effectiveness, corruption and quality among other things (Friedrich Naumann Stiftung, 2017). Although courts in both countries have been receptive of climate change litigation, the law of both countries cannot be compared. Pakistani law excludes minority groups, particularly women, from basic rights. Pakistan has disregarded comments from the international community on its human rights situation (Human Rights Watch, 2019). Groups who have sought to address these rights violations are regularly suppressed by the government (Ibid.) Additionally, the Netherlands and Pakistan have a different level of ambition in their climate policies. The approach of the Dutch policy framework is focussed on mitigation of the effects of climate change. Reduction of emissions are the cornerstone of the Dutch environmental policy. In contrast, the Pakistani policy framework is primarily focussed on adapting the country to the effects that climate change is already having on the country and which will intensify in the future. I will expand on the content of the environmental policy of both in the sections on the individual countries.
3.2 Pitfalls
Both the theoretical and methodological approach of the research create blind spots and limitations that need to be addressed in order to contextualize the effects of both climate cases.
3.2.1 The Limitations of Comparative Analysis
Inherent to a comparative analysis studies is the difficulty to extrapolate generalities from the cases. The inability of a researcher to account for every possible externality means that definitive statements are nearly impossible to make (Halperin & Heath, 2017, p. 223).
Additionally, comparative analyses have traditionally included a small included a small number of cases per research. This small N further decreases the ability to make definitive statements because it makes it impossible to observe results across a range of different contexts. Despite careful case selection and the guidance of a clear theoretical framework, this thesis will also be plagued by these methodological pitfalls (Ibidem, p. 217).
Because of this inherent flaw comparative analyses have traditionally also had an important function as descriptive works. Although not universally applicable, they describe the working of a concept in different contexts. This is also how I see this research. It will look into the transformative effect of climate change litigation in very different contexts, but the effects it finds will not be universally applicable to all litigation cases (Ibidem, p. 213)
3.2.2 Theoretical Limitation of MLP
Research conducted on the basis of MLP also creates several pitfalls. Like comparative analysis, research on the basis of MLP has been criticised on its transferability. The insight it gives into the development of a specific niche is often not transferable to other cases
(Lawhon and Murphy, 2011, p. 360). As demonstrated by the expansive set up of the power relations in the theoretical section, this setup is often quite case specific. This specificity diminishes the transferability of the findings.
3.3 Defining the Success of Climate Change Litigation.
Van Geel fairly states that climate cases should not be expected to be a panacea that will; “resolve the dilemma of climate change on their own” (2017, p. 65). The strength of climate
cases is twofold. Firstly, cases can stimulate governments to act on climate change and abide by existing obligations. Secondly, climate cases can draw attention to the climate problem (Van Geel, 2017, p. 65).
3.3.1 Defining the Indicator of the Success of Climate Change Litigation
The environmental goals of the Netherlands and Pakistan provide a reference point for what the climate case are attempting to achieve. In the case of the Netherlands these are the reduction goals which form the basis of its environmental policy. In the case of Pakistan this a policy framework.
The effect of the climate case is defined as the incorporation of the verdict in the policies that are made subsequent to the verdict. The incorporation of the verdict into the government's environmental policy will be derived from government sources that describe the environmental efforts of both countries subsequent the verdict.
3.3.2 Context of the Cases and Assessment Criteria
Although MLP is blind to the organization of the political system, the political context of both countries is important because the judicial process as well as the implementation of the verdict can reduce the effect of the climate case.
The organization of the political system of both countries needs to be taken into account when assessing the effect of climate change litigation. The environmental policies of the Netherlands and Pakistan differ in goals, priorities and effectiveness. A comparison between the environmental policy of the Netherlands and Pakistan on a similar set of criteria is therefore unproductive. Assessing the effect of both climate cases on the environmental policy of both countries is not based on a set of criteria, but on the incorporation of the verdict in subsequent environmental policy. Incorporation of the the verdict in an
institutionally weaker country, like Pakistan, is more impressive than a similar effect in the Netherlands.
In the next two chapters, an overview of the political situation in both countries will be given in order to take the national context into account when assessing the effect of the climate cases.
4. The Netherlands
Now that I have introduced the theoretical and methodological aspects of the research, I will continue by looking into the two cases. The manifestation of the different levels of the MLP framework will be outlined for both cases. First, the manifestation of climate change in both countries will be examined. Subsequently, the regime level response to climate change is discussed. In the Netherlands this response is guided by specific reduction goals. The Pakistani response is guided by a policy framework with less specific goals. Lastly, the climate cases of both countries and the grounds on which they were held will be examined, as well as the judicial context in which they took place.
4.1 Landscape: The Netherlands and climate change
From a climatic perspective the Netherlands is a peculiar country. More than 55% of its land lives below sea level (PBL, 2013, p. 38). Therefore, sea level rise poses the greatest climatic risk to the country. Nonetheless, expertise in water management means the country is unlikely to suffer greatly from the effects of sea level rise in the next 25 to 30 years. The Netherlands Environmental Assessment Agency (PBL) assessed the effects of climate change on the Netherlands as “manageable” until 2050 (PBL, 2012, p. 9). Apart from its geographic peculiarity, the Netherlands has one of the most developed economies in the world. This economic development results in the country being a large emitter of CO2 relative to its size and population (Urgenda, 2013, pp. 115-117). Climate change poses risks as well as
opportunities to the Dutch economy (PBL, 2012)
4.1.1. Geographical context and Climate Change
Despite posing a manageable risk the Netherlands will be impacted by climate change, incidentally as well as structurally. Incidentally, changes in weather patterns will create periods of increased rainfall and droughts, resulting in incidental surpluses and deficits of water that the country will have to manage in the future (PBL, 2012, p. 53). Severe rainfall events can result in drainage problems. An increase in periods of droughts result in more climate related incidents. The amount of uncontrollable forest fires is projected to increase.
(PBL, 2012, p. 75). Dike strength can also be compromised by drought. In 2003 a dike made out of peat collapsed as a result of drought (Urgenda, 2013, p. 98).
However, the structural results of climate change pose a bigger challenge to the water management of the country. In the medium term the Dutch water table is at risk of
salinization. Salinization significantly lowers the ability of soil to support nature (Rijksoverheid, 2016, p. 23). Structurally higher temperatures increase evaporation of groundwater, making the ground more saline. Salinization is exacerbated by the intrusion of seawater that results from water level rise and the greater fluctuations in the discharge of major rivers. Especially in the summers months, the Rhine and Meuse rivers are predicted to discharge less water (PBL, 2013, p.47.)
In the long term there exists a distinct possibility that the country will become
uninhabitable as a result of sea level rise. The melting of the Greenlandic ice cap causes a sea level rise of 7 metres. The trigger point for this cap melting is projected to be temperature rise between 1,5 and 2 degrees Celsius. An increase in the likelihood of this happening has seen the Dutch Meteorological Institute raise concerns that sea level rise will result in a situation where coastal defenses can no longer protect the Netherlands. If this were to happen now it would mean that 9 million people would be forced to move (Urgenda, 2019, pp. 7-9)
4.1.2 Economical context and Climate Change
The Dutch government has reported on the potential effects of climate change on the economy. From these reports it emerges that the risks of climate change on the Dutch economy are uncertain. Although extreme sea level rise would have a devastating economic effect, in the short term climate change can create opportunities for economic growth.
Severe weather events have a incidental negative impact on the economy because of the damages that result from them. The damages that can be caused by these events are not unsubstantial. In 2016 a hailstorm resulted in 700 million euros of damages (Rijksoverheid, 2016, p. 6)
More structural negative economic effects of are again tied to water deficits that result from climate change. A shortage of water will have the biggest effect on the agricultural sector. Water evaporation as a result of heat waves can have a negative effect on irrigation as well as crop productivity. Salinization can also negatively affect the productivity of crops.
climate change on the water table is uncertain (Rijksoverheid, 2016, p. 23 ). Another area of the economy that will be negatively impacted is shipping. In 2018, low tide that resulted from an heat wave inhibited shipping on Dutch rivers (NOS, 2018). Because of the increase of dry periods and the decreasing discharges in the summer months, the shipping sector suffer more hindrance in the future.
However, in its reporting the state does not consider the temperature rise that results from climate change to be unequivocally bad. Instead, it states that climate change might induce economic growth in some sectors of the economy. Apart from posing risks to the agricultural sectors, temperature rises create an opportunity for the Dutch agricultural sector to get an competitive advantage by cultivating crops that no longer grow in Southern Europe as a result of drought (Rijksoverheid, 2016, p. 9). Apart from the agricultural sector, the opening of a new shipping routes as a result of melting ice could benefit the Rotterdam harbor. In particular the opening of the Northwest passage (above Canada) will drastically shorten shipping times to Asia. Lastly, the PBL notes the potential economic benefit of higher temperatures for the tourism sector, making the Netherlands a more agreeable holiday
destination (PBL, 2012, p. 33 & pp. 38-40).
Overall, the Netherlands has a giant advantage over Pakistan when it it comes to managing the effects of climate change; its development level. Its development level is what allows the PBL to label the effects of climate change on the Netherlands as ‘manageable’. The Deltares institute estimated in 2012 that ‘climate proofing’ the Netherlands would cost 71 billion euros until 2050 (Rijksoverheid, 2016, p. 6). This number has increased since because of the discovery that climate change happens more rapidly and intensely than
originally theorized. Nonetheless, considering the GDP of the Netherlands was 826 billion in 2017, this number does not have a detrimental effect on the Dutch economy. All in all the direct effect of climate change on the security of energy, food and water in the Netherland can be classified as low risk-high consequence in the medium term, meaning the likelihood of severe events is small but potential consequences would be grave.
4.2 Regime: Political Situation and Symbolic Climate Response
The political response of the Dutch government to climate change has been mixed. Climate change has penetrated into the regime level and has been part of the policy agenda of the government for some time. Multiple comprehensive policies have emerged as a result. Nonetheless, the Dutch environmental policy has continuously failed to realize the ambitions set out in these policy plans.
The political response of the Netherlands is molded by the ideology of the biggest governing party. For almost ten years this has been the liberal party (VVD). The government does acknowledge the importance for the Netherlands to contribute in the fight against climate change and the Dutch government markets the Netherlands an an international leader on climate change (Rijksoverheid, 2017, pp. 37-39). Simultaneously, the Dutch government accounts for the competitive position of the Dutch economy in its climate policy (Ibid.). The result of which is the Netherlands remaining one of the biggest per capita emitters in the world. A concrete example can be deduced from the 2017 coalition agreement. The coalition agreement stipulates the government ambition of a 49% reduction of emissions in 2030. This is higher than the 40% emissions reduction agreed on EU level. The Netherlands, as a leader on climate change, would petition the EU to increase the reduction percentage. Nonetheless, the translation of this ambitious goals into actual policy reveals the continued economic focus of the Dutch government. First and foremost, in the coalition agreement the government backtracks and states that the 49% reduction goal will only be used if similar ambitious goals can be agreed with other North European countries. The reason for this is that the competitive position of the Dutch economy vis-a-vis these countries would suffer from having more ambitious reduction goals (Ibid.). Secondly, achieving a reduction of 40% in 2030 requires an decrease of emissions equivalent to 56 megatons of CO2 (Mton). 20 of the 56 Mtons are not decreased by reducing emissions, they are reduced by capturing and storing CO2 in the ground, bringing the effective reduction of CO2 down to 36 Mtons. The technology required to store CO2 in the ground is currently unproven (Wassink, 2017). Additionally, the
agreement stipulates that at the competitive position of the Dutch industry must not be endangered as a result of this reduction and that reduction must be achieved in a cost-effective manner (Rijksoverheid, 2017, pp. 37-39).
The 2030 example outlined above is indicative of the discrepancy between ambitious goals and insufficient efforts to realize these goals. In the following sections I will
demonstrate the existence of a similar discrepancy in two environmental goals for 2020. The Dutch government creates ambitious goals, but continually fall short in realizing them. Additionally, the Dutch government continues to market the Netherlands as a leader in climate change, while European reports show the country to be one of the worst performing countries in the field of climate change (Eurostat, 2019). The per capita CO2 emissions remain among the biggest in Europe. Further inquiry into the Dutch government’s response to climate change in following sections will demonstrate that its policy is symbolic according to the definition outlined in the theoretical framework. The political strategy of the Dutch government behind declaring ambitious climate is to be perceived as a leader on climate change. However, the intend to realize these goals does not correspond with the declared goals.
4.2.1 Environmental Policy: Priorities
The declared priorities of the Dutch environmental policy is twofold, centering on adaptation and mitigation. I will first shortly address adaptation and then address mitigation more substantially.
The Dutch adaptation policy is focused on ‘climate proofing’ the country. The Dutch government has drawn up several reports that outline plans to climate proof the country. These reports together form the national adaptation strategy (NAS). The NAS is accompanied by an implementation document in which the government outlines yearly priorities. Another large part of the Dutch adaptation effort is concerned with containing sea level rise. Adapting the country to sea level rise is addressed in yearly reports of the Delta Programme. Most important in waterproofing the Netherlands is the strengthening of dykes and adapting new drainage solutions (Rijksoverheid, 2016)
A second priority of the Dutch environmental policy is the mitigation of climate change. The mitigation policy is centred around the previously mentioned reduction goals, which reduce CO2 emissions by an agreed percentage over an agreed period (SGI, 2018). The percentage by which emissions have to be reduced result from international negotiations and agreements between the member states of the EU (Delbeke & Klaasen, 2016, pp. 79-81). As observed in the coalition agreement this percentage corresponds to a emissions reduction
in Mtons of CO2. The Dutch government translates this Mtons of CO2 in reduction policies for the sectors of the Dutch economy. Since these reduction goals are a cornerstone for the Dutch environmental policy as well as the Urgenda case being based on them, I will address the Dutch environmental policy primarily through these goals.
4.2.2 Reduction goals
As stated, the Dutch mitigation policy is focused on the reduction of CO2 emissions. The mitigation strategy of the Dutch government is highly integrated with European agreements. European agreements translate into emission reduction percentages for each members state, which have to be realized on the national level. The reduction goal of 2030 has been used as example to demonstrate the discrepancy between goals and realization. Until 2020 the mitigation strategy of the Netherlands is bound by the EU 2020 Strategy (EU2020).
The EU2020 was agreed on the European level and was informed by the
intergovernmental panel on climate change (IPCC). The IPCC is a UN research centre on climate change which produces assessment reports (ARs) that describe the ongoing change of the global climate, as well as the limits which should be maintained for a liveable planet. On the basis of these ARs the EU member states agreed on two targets; (1) an emissions
reduction of 20% and (2) a 20% production of energy from renewable sources by 2020 compared to 1990 levels (Delbeke & Klaasen, 2016, pp. 79-81).
Because the EU directly regulates many sections of the European economy, and by extent the Dutch economy, it is also takes responsibility for reducing the emissions of these sectors. It does this through the emissions trade scheme (ETS). The ETS ‘caps’ the amount of CO2 that be produced in these sectors. Emitters in the ETS can trade emissions allowances. This amount is reduced over time to ensure that emissions will fall (European Comission).
On the sections of the economy that are not covered by the ETS, the member states have also agreed on a 20% emissions reduction by 2020 compared to 1990 levels. These sectors cover about 55% of the European economy and include transport, waste, housing and agriculture (European Commission). As a result of the burden sharing agreement (BSA), not all countries have to achieve the same percentage of reduction. I will not go into to the mechanism that determines the individual contribution of each member state. The BSA determined the emissions reduction goals with 2005 as the base year, this being the first year
EU ETS” (Delbeke & Klaasen, 2016, pp. 80-82). Under the BSA two 2020 goals were created; (1) A 16% emissions reduction in non-ETS sectors and (2) 14% energy production from renewable sources (Ibid, p. 80 and 57).
Both goals have to be realized through the implementation of national policies. Until the Urgenda verdict in 2015, the realization of a 16% reduction in CO2 emissions was uncertain. The PBL reported in 2015 that the emission levels had been relatively constant for years. The report also stated that the government had not formulated a clear policy path to achieve the 16% (PBL, 2015, pp. 9-10). In 2018 this policy path still seems to be missing. The government claims it will achieve a 23% reduction in 2020. However, when three independent research institutes examined the 2017 coalition agreement on behalf of PBL, they concluded that the emission reduction in 2020 would not be more than 15% (den Ouden, Rooijers and Kerkhoven, 2018, p. 8). The realization of a 14% energy production from renewable sources also seems out of reach. The basis for achieving this goal is the Energy Accord (EA). The EA was the result of a consultation of more than major 40 stakeholders and outlines the policies that need to be taken to realize the goals. The government stipulates the basis of the EA to be cost-effectiveness and the creation of investment that strengthens the competitive basis of the Netherlands in the energy sector. The state takes on a facilitating role in the process of increasing energy production from renewable sources (Sociaal
Economische Raad, 2013, p. 7). Eurostat reported in 2019 that the Netherlands was the furthest removed from its goal. In 2017 the percentage stood at 6.6%. Compared to 2004 the Dutch government has managed to increase renewable energy production with 4,6%. A further 7,4% needs to generated from renewables by 2020 in order to achieve the European target (Eurostat, 2019). The chance that is was going to happen was ruled out by the EU in 2017 (NOS, 2017)
4.3 Niche: Litigation Case
As stated, in 2015 Urgenda became the first civil society actor to litigate a state over the entirety of its effort to combat climate change. The judicial space for climate cases was opened up as a result. In this section I will outline the grounds Urgenda used to litigate the Dutch government, the defence of the state and how the judicial space opened up as a result.
4.3.1 The Creation Judicial Space for Climate Change Litigation
The Urgenda case kicked off a rights-based trend in climate change litigation. It demonstrated that court could be used as arenas to contest the lack of state action on climate change. In contrast to Pakistan the high level of institutional development of the Netherlands meant that Urgenda did not have to worry about the ability or partiality of the court in upholding
citizens’ rights.
However, up until the point of the Urgenda case a contestation over state
responsibility to act on climate change had not yet happened in a judicial arena and was at that time thought to be the exclusive terrain on the executive branch of government. Influencing environmental policy therefore constituted exerting pressure on the executive branch through, for example, lobbying or protesting (Sabin Centre, 2018).
The defence of the Dutch government was grounded in the judiciary violating the separation of powers by ruling in Urgenda’s favor. The state argued that the court ruling in favor of Urgenda would intrude on the separation of powers and would therefore undermine the state. Moreover, the government also feared that a ruling in favor of Urgenda might induce a wave of similar cases in which the court had to act similarly on the basis of jurisprudence (Stichting Urgenda vs De Staat der Nederlanden, 2015).
The court ultimately ruled in Urgenda’s favour. It stated that is was not violating the separation of powers because one power does not have primacy over another. The judiciary has to judge, also in cases involving government institutions. Because in a democratic state governments can also be held accountable, a complete separation of powers does not exist. Additionally, the judge stated that the implications of the verdict for third parties (e.i. the population of the Netherlands) had not influenced the ruling. It had simply ruled in a dispute between two parties (Stichting Urgenda vs De Staat der Nederlanden, 2015). The debate around climate cases violating the separation of powers remains contentious. In other cases judges have ruled similar cases to be an intrusion on the separation of powers.. Nonetheless, by ruling in Urgenda’s favor the judge created jurisprudence and opened the door for similar cases.
