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Right makes Might?
A case study on how the Dutch administrative system influences a court case against the government on reducing greenhouse gas emissions.
Leiden University, the Netherlands Faculty Governance and Global Affairs
Public Administration
Master Thesis Public Administration Track - Between Politics and Policy Erik Verhaar - s1147773
Supervisor - Dr. S. Giest Second Reader - Dr. B. Carroll Final Version August 2016 Word Count - 29500
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‘Those who study administration study values and those who practice administration practice the allocation of values’ – Dwight Waldo, 1948
Dear reader,
Before you lies the thesis ‘Right makes Might?’, a study that examines how a climate court case in the Netherlands might be characteristic for todays’ society in Western Europe. As I am close to finishing this thesis as well as my education in Public Administration, I am rethinking a question that was often discussed; is Public Administration ‘real science’ or a skill, a practical art? I can now say it’s both. It is about discovering how humans and
institutions work in order to obtain and maintain a public good, while at the same time, it is the art to do so – and they both complement each other.
Similarly, I realize that the case study of this research sometimes implicitly refers to the citizen vs. the government dichotomy. Within the court case, this might be true. Yet outside, where climate change is happening, we should not speak of such a distinction. We know that climate change cannot be solved by a government alone. This asks for cooperation of every actor, whatever role he or she might fulfil in society. As you will see in this research, current shifts and developments may open or may have opened doors to innovate, to tackle the negative consequences of climate change and to create a sustainable environment and a circular economy – together.
As for my own ambitions, I would like to point out that the combination of public administration and the subject of environmental policy and sustainability fit perfectly together for me. This earth needs a circular economy and I would love to share my
knowledge for creating a sustainable earth. Finding this interest took a while, and I would like to thank my close family and friends to motivate me not to give up on finding this interest. I also wish to give special thanks to my supervisor, Sarah Giest, for her excellent guidance and support during the writing process.
I hope you will enjoy your reading, Erik Verhaar.
4 Abstract
On the 24th of June 2015, the Court of The Hague, the Netherlands, ordered the Dutch government to adjust its environmental policies in order to reduce the collective greenhouse gas emissions of the Netherlands by 25% compared to 1990 by the end of 2020 (De Rechtspraak, 2015). The civil section of the court argued that the current policy is below the norm to reduce greenhouse gas emissions that are deemed necessary by science on climate change and by international agreements. Newspapers spoke of a unique case, as no verdict has ever been given worldwide forcing a government to reduce greenhouse gas emissions. This raises the question how such a court case and verdict could occur and what this would imply for current policies.
The Dutch administrative system and related developments in that system could have an impact on the actors involved in the policy-cycle of climate change, and more specifically in the court case against the Dutch government. This research is therefore aimed to find out if and how this system may have influenced the decisions made in the climate court case and why this case could specifically occur in the Netherlands. To find the answer for this question, the research uses qualitative data and a single-case study design in order to gather in-depth information on the case.
The results suggest that the Dutch administrative system, the external environment, such as the influence of international agreements, civil society and developments in the judicial branch, and aspects of governance had an indirect influence on the climate case by providing a suitable environment for it to take place and for the judge to dare to make the final verdict. Having this verdict could provide a major change for court cases abroad with a similar implication, as the case in the Netherlands has influence on international jurisdiction. The research also finds that in the context of climate change, there is a call for an accountable government in a network-setting. Applying the paradigm of Public Value Management in environmental policy could assist in fulfilling this demand.
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Table of contents
Abstract --- 4
List of tables and figures --- 7
1 Introduction --- 9
1.1 The Problem Statement --- 9
1.2 Research Question --- 10
1.3 Relevance --- 10
1.4 Structure of the Thesis --- 12
2 Theoretical Framework --- 13
2.1 Historical View: The Public Interest --- 13
2.2 Modern View: The ‘Right State’ --- 17
2.3 Developments since the 1990s --- 20
2.4 Governance: Multi-Level and Good --- 26
2.5 Summary & Synthesis --- 29
3 Methodology --- 31
3.1 The Research Design --- 31
3.2 Conceptualisation --- 32
3.3 Operationalization --- 34
3.4 Hypotheses --- 36
3.5 Data Collection --- 37
3.6 Limitations of the Research Design --- 39
4 Case study --- 41
4.1 The Climate Case in the Netherlands --- 41
4.2 Involved Actors and the Political Arena --- 47
4.3 National Policy of the Netherlands --- 50
4.4 European Plans and Goals --- 53
4.5 Court Cases Abroad --- 55
5 Analysis --- 59
5.1 Valuing the Public Interest --- 59
5.2 The Dutch Administrative System --- 61
5.3 The External Environment --- 65
5.4 A Shift in Governing? --- 69
6 Conclusion --- 75
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6.2 Recommendations --- 77
6.3 Future research & limitations --- 79
7 References --- 82
8 Appendix 1: Definitions --- 88
9 Appendix 2: Transcript of the Summary of the Climate Court Case. --- 90
10 Appendix 3: Transcript of Tegenlicht – the Climate Case --- 95
11 Appendix 4: Interview with Dennis van Berkel ---100
12 Appendix 5: Numerical data on GHG emission ---111
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List of tables and figures
Figure 1: From Welfare State to Participation Society (de Mooij, 2006 adapted by Delsen,
2012: 27) ... 20
Figure 2: Probability of staying below two degrees Celsius based on PPM levels (Intergovernmental Panel on Climate Change (IPCC), 2007). ... 42
Figure 3: Visual representation of GHG emissions in the Netherlands. ... 116
Figure 4: Visual representation of GHG emissions worldwide. ... 116
Figure 5: Change in the total amount of GHG emissions in the Netherlands since 1990 in cumulative percentages. ... 117
Figure 6: Characteristics of Good Governance (Boersma, 2012). ... 119
Table 1: Four perspectives on public values and interest ... 16
Table 2: Operationalization of the variables ... 36
Table 3: GHG emissions in the Netherlands ... 112
Table 4: GHG emissions in the Netherlands, adjusted by me ... 113
Table 5: GHG emissions in the Netherlands by sector ... 114
Table 6: GHG emissions worldwide ... 115
Table 7: A traditions approach to political-administrative systems (Loughlin and Peters, 1997 in van den Berg, 2011: 88). ... 118
Table 8: From government to governance (Leach & Percy-Smith, 2001 in Bulkeley & Betsill, 2003: 17). ... 118
Table 9: Elements of PVM, in contrast to traditional PA and NPM (Part of the table by Bryson et al. 2014: 446). ... 119
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1 Introduction
‘Men argue. Nature acts’ - Voltaire
Last year, in 2015, the Paris Agreement was signed by 195 countries to avoid the dangerous effects of climate change by keeping the global temperature rise below two degrees Celsius (Website European Commission, 2015a). This is the first legally binding, global climate deal, to enter into force by 2020. To reach these aims the global amount of greenhouse gas (GHG) emissions needs to be reduced. An action plan has been developed by the European Union in order to make sure every EU member State is well on track on meeting its targets. The Netherlands is currently on track on meeting those targets. However, some questions remain whether these targets are sufficient to stay below the two degree norm.
1.1 The Problem Statement
On the 24th of June 2015, the Court of The Hague, the Netherlands, ordered the Dutch government to adjust its environmental policies in order to reduce the collective GHG emissions of the Netherlands by 25% compared to 1990 by the end of 2020 (De Rechtspraak, 2015). The court case (also referred to as the case, or the climate case) was fought on behalf of 886 citizens by the Dutch foundation 'Urgenda', an organisation that provides a platform for citizens in the field of sustainability. The civil section of the court argued that the current policy is below the norm to reduce GHG emissions that are deemed necessary by science on climate change and international agreements. Current policy plans would merely reach a reduction of GHG emissions by 17% in 2020 compared to 1990, instead of the based norm of 25%-40% (De Rechtspraak, 2015). Also, the court agreed that the Dutch government has not made enough efforts to protect its citizens and thus violating its duty of care. On the 26th of August, 2015, the Dutch government decided to appeal the case.
This is the first time in history a government gets sued and loses the case on the subject of reducing GHG emissions. For the government of the Netherlands, this is a problem as costs will increase in only a short period of time. Some also argue that the judicial system crossed its 'boundaries' by stepping into the political arena and stating what policy needs to be legislated. On the other hand, the Dutch government has a duty of care towards its citizens and certain rights may be violated if the government fails to reduce a certain amount of GHG emissions. Because of this conflicting cleavage, it is interesting and
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necessary to research how the Dutch climate case could occur and why the judge decided that the government should increase its policy efforts.
1.2 Research Question
Because it is the first time such a legal judgement was given on the reduction of GHG emissions, it is believed that the Dutch administrative system may have some influence on the decisions made within the court case. By analysing those decisions in their context, it can be understood how the court case progressed and why this verdict was decided. The research question of this thesis will therefore be formulated as: ‘To what extent are the decisions made within the climate case in the Netherlands influenced by the Dutch administrative system?’. Answering this question academically will first provide insights in the climate case itself by examining the behaviour and decisions of the involved actors. The following two decisions that were made with regard to the court case will be analysed:
1. The decision of Urgenda to undertake legal actions.
2. The decision of the court to force the Dutch government to increase efforts to reduce GHG emissions.
It is expected that these decisions are related to the context and the Dutch administrative system. The broader question why this case occurred in the Netherlands and if the administrative system indeed had any impact can then be answered accordingly.
As this is a research with a background in public administration, this thesis will limit the extent to which technical aspects of either the court case or of the GHG emissions are discussed, although a certain degree of knowledge in these aspects is unavoidable. It should be taken into account that this research will thus emphasise the governmental aspects and questions of the case, which can be better understood in terms of policy-making, political philosophy, ethics, sociology, international relations and organizational theory. The research on the court case is not about ‘what’ made the involved actors decide, but more of a ‘why’ question.
1.3 Relevance
Given the date of the verdict (June 2015), the case itself is relatively topical. Before the verdict, Urgenda has been putting the issue on the agenda for more than three years, when Urgenda sent a formal letter to the Prime Minister of the Netherlands in 2012 (Urgenda, 2012a). Also the topics of climate, global warming and sustainability are gaining more and
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more significance in policies and international agreements, such as the Paris Agreement, as has been described in the beginning of this introduction.
The issue is not only relevant in terms of time, but both from a scientific and societal perspective it is important to study this case and its significance. It can be argued that governance in the Netherlands and other ‘Western countries’ is currently in transformation. The king of the Netherlands, Willem-Alexander, stated in his annual address (a speech written for him by Prime Minister Mark Rutte’s government) in 2013: ‘it is unmistakable that citizens in our current network- and information society are more articulate and independent than in former times. Combined with the necessity to reduce the budget deficits of the government, this causes the classic welfare-State to slowly change into a participation society’ (Website of the Dutch national government, 2013: translated by me). It can thus be questioned whether these shifts in the Dutch administrative system are connected to the way governmental and (semi-) public organizations interconnect with one another. Is the fact that a non-state actor steps up for the collective a typical phenomenon for the participation and network society? And are the roles of law towards the government changing? So from a scientific point of view in public administration, the case of Urgenda is interesting in the sense that traditional boundaries of organizations are getting challenged. Answering the research question of this study will therefore give a theoretical basis for future developments in governance and organizational relationships as well as giving a fundamental origin for more research and testing current theories in public administration.
On top of that, the research is also relevant for society in the sense that the results can be useful for improving public organizations. One of the points the court based its decision on, was the social rights of citizens and the duty of care by the Dutch government (De Rechtspraak, 2015). This means that, according to the Court of The Hague, the government acted unlawfully by providing such limited policies that would not be sufficient to protect its citizens from harmful consequences of GHG emissions. For governments, this would be something to prevent because this can harm its integrity. Researching the case, the conditions on which the actors based their decision and organizational relationship in this time, is also important to make sure citizens are getting protection and to make sure the government acts in a lawful way. The study can therefore be used to help improving policy to prevent such deficits. Furthermore, it provides useful information for countries abroad
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experiencing similar (or different) conditions and problems with regard to the reduction of GHG emissions and legal differences.
1.4 Structure of the Thesis
This introduction merely gave a simple insight into the problem of GHG emissions and the way governments are dealing with this issue. The next section, the theoretical framework, will review related literature to provide background information on the historical and modern views on the purpose and structure of Western governments, the external environment and on the notion of governance. This serves to provide an outline for answering the research question and set the academic discourse. Given this framework for providing an answer to the research question, the methodology of this thesis will be described next. The methodology will provide insights in how this thesis will attempt to answer the research question by explaining the academic construction of the thesis, the way data will be collected and the possible limitations of the research methods. This is needed to make the research valid and reliable and to make sure it meets the academic requirements. Afterwards, the case study will elaborate on the court case fought by Urgenda itself. Among other elements, the foundation Urgenda, their goals and methods will be described, the progress of the case and the involved actors will be clarified and the data that was gathered in this research will be revealed. With all these sections combined, the analysis can be set up to answer the research question, by analysing the data with the view of the different theoretical approaches. Everything will be summarized in the conclusion, where the analysis in relation to current issues, further research and possible shortcomings of the research will be discussed as well.
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2 Theoretical Framework
‘He who loves practice without theory is like the sailor who boards ship without a rudder and compass and never knows where he may cast’ - Leonardo da Vinci
In order to answer the research question it is helpful to understand different theoretical concepts and the academic debate among these concepts. The theoretical framework will give an outline of the concepts that were deemed most significant for the research. This will serve on the one hand to give background information on theories within public administration and secondly to provide analytical models that will be used in the analysis of this study itself. Using a chronological order, the theoretical framework will start with examining the historical debate on the public interest. Next, the modern view on governing from the 20th century will be examined, followed by the developments since the 1990’s with regard to climate change. The theoretical framework will end with the current discourse on the concept of governance.
2.1 Historical View: The Public Interest
To be able to answer the research question, some theoretical knowledge on what the public interest exactly entails is needed. Since climate change and the reduction of GHG emissions is a common good/issue, academic views can help in defining the problem and understanding the decisions made by the involved actors. This section will grasp several ideas and views by different philosophers on the public interest and public values.
The philosophers Plato and Aristotle were fierce critics of the concept of democracy, even though their era is famous for the Athenian democracy. In their eyes, democracy would be corrupt as it is not aimed at the public good, but rather at individual needs (Miller, 2012). This means that democracy causes power to be evenly spread, and the lower class would become the rulers as their class grows bigger and bigger, while this class is more likely to think in personal gains rather than in public needs. In Book I of the Politics, Aristotle argued that man is political by nature. Men form the public interest through participation in the political community provided by the government. Aristotle also argued that only matters of the common good are right; matters for the rulers’ good are wrong (Encyclopaedia Britannica, 2015b).
In the 15th and 16th century, Machiavelli gave his view on the common good. Machiavelli argued that securing the common good would depend upon the existence of
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virtuous citizens. Machiavelli therefore developed the notion of virtù for promoting the common good through the act of citizenship (Encyclopaedia Britannica, 2015b). Virtù in that sense meant the drive or ability to act, much like inner values.
Later, philosophers such as Hobbes, Rousseau and Locke formed the theory of the social contract during the 17th and 18th century. Hobbes argued that, in order to secure their rights and lives, they would have to give some of their freedom to a higher absolute Sovereign (Duncan, 2013). Separate individuals would then become citizens with a public interest, as each citizen would want to achieve peace. This would thus create the political community through a natural way (Duncan, 2013). Jean-Jacques Rousseau agreed with Hobbes that a social contract is unavoidable to secure rights, but are obtained in a different way. Rousseau argued that the highest political power should be equal to the general will, and this power should lie among all citizens. This general will is then defined as the collective need of all to provide the common good for all, which should be distinguished from the particular will of the individual (Bertram, 2012 & Encyclopaedia Britannica, 2015b).
More closely linked to the fundaments of the Western democracies that live nowadays are the ideas of John Locke. Similar to Hobbes and Rousseau, Locke also believed that governments are based on a social contract. Within the political community, the will of the majority should prevail. Similar to today’s system, Locke believed that laws must apply to all citizens and not favour particular interests, and there should be a division of legislative, executive, and judicial powers (Tuckness, 2016). So Locke assumes that people specify which entities are entitled to exercise certain powers. Locke argues that these powers should be used to protect the rights of the people and to promote the public interest (Tuckness, 2016).
The separation of powers within government is a concept still embedded in governmental structures today. Building on John Locke’s ‘Second treatise of Government’ Charles de Montesquieu used this notion to explain how governments can be preserved from corruption; a system in which different bodies exercised legislative, executive, and judicial power, which are bound by the rule of law (Bok, 2014). This idea comes partly from his view on liberty, which involves ‘living under laws that protect us from harm while leaving us free to do as much as possible, and that enable us to feel the greatest possible confidence that if we obey those laws, the power of the State will not be directed against us.’ (Bok, 2014). In order to achieve such form of liberty, a government should have a separation of
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power so that each body can check one another to prevent abuse and tyranny, and thus preventing obstructs.
A lot of differences exist between these philosophers concerning how governments are formed, what tasks a government has and where power should residue. One element they all share however is the notion of the public interest. Although the philosophers would not agree on what the public interest actually entails, most of them would agree that the public interest in the political arena is superior to private interests. The notion of the public interest in todays’ Western democracy and welfare states residues in what political parties believe what is best for the community, and is more closely related to the ideas of Locke, as he argued that the will of the majority should prevail. The public interest thus has no specific definition. Some argue that the term ‘interest’ refers to personal preferences, making it more individualistic. Others however state that the public interest is referring more to the general well-being (Douglass, B. 1980: 109).
It can be regarded that the concept of the public interest is related to public values, generally seen as the contribution of a citizen or organization to the public good. However, again there is still debate on what public values actually entail, as the term is quite ambiguous. Some authors, such as Williams and Sills (1968), perceive values as anything of interest or preferences. Others, such as Kluckhohn and Oyserman (1962 & 2001), connect consequences to public values by stating that they are social agreements changing the social order or influencing the available means to an end.1
The ambiguousness of the term public values calls for a measurable and clear definition. This thesis shall use the definition of Bozeman, who believes public value is composed of three different elements:
‘A society’s ‘public values’ are those [values] providing normative consensus about
(a) the rights, benefits, and prerogatives to which citizens should (and should not) be entitled; (b) the obligations of citizens to society, the state, and one another; and
(c) the principles on which governments and policies should be based.’ (Bozeman, 2007: 13). Having a clear definition of public values is important for examining what is felt or argued in society to what policy is being made and carried out by government.
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Gathered from a series of lectures called ‘Public Values & Ethics’ by Dr. P. Overeem at Leiden University, Faculty Governance and Global Affairs, followed in 2015.
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So the way public values and the public interest are perceived and defined influences how public goods should be obtained and maintained. The following model attempts to describe those different perspectives by classifying the public interest and public values according to a philosophical school. 2 This model shall be used in the analysis in order to make the role of the government more comprehensible through different points of view. The table is set on two fundamental questions:
1) Are (all) values objective?
2) Is there an irreducible public interest?
2. Irreducible public interest?
No Yes 1. Ob je ct ive val u es No Utilitarism Efficiency Pragmatism Democracy
Yes (Classical) Liberalism
Freedom
Constitutionalism
Law & Order
Table 1: Four perspectives on public values and interest
This creates the four different perspectives above, plus the central element which they value. These four perspectives can in short be explained as:
1. Utilitarism: Pursues ‘the greatest happiness for the greatest number’, aiming to maximize the public interest, both in quantity as well as in quality. To achieve this, efficiency, effectiveness and economy are central values (Burns, 2005: 46).
2. (Classical) Liberalism: Urges government to protect us from each other, set conditions in order to maximize your own well-being, and stresses individual freedom. Government should only interfere if the market seems to fail (and because markets fail, we have governments). Values are objective, yet there is no irreducible public interest, because it comes down to private interests.
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The model, as well as the explanations of the four perspectives, were provided by a series of lectures called ‘Public Values & Ethics’ by Dr. P. Overeem at Leiden University, Faculty Governance and Global Affairs, followed in 2015.
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3. Pragmatism: There is an irreducible public interest, which is in fact the process of democratic decision, not the outcome. Because values are not objective, democracy is cherished so that government is legitimized and can create pragmatic solutions. Above all, the process of democratic decision is the result itself – the means justify the end.
4. Constitutionalism: Argues that the constitution represents the values of the regime, which are therefore objective as they form the values of each citizen in a specific area. The constitution also makes up the public interest and governmental institutions and bureaucrats should therefore uphold the constitution and pursue regime values, which can be found in written and unwritten laws.
The notion of the public interest and public values as well as the ideas on what a government is based are important for this thesis, as it gives insights into how the boundaries and playfields of governmental institutions are formed and legislated, as well as how these boundaries might conflict with each other. This section also gave insights into the classical division of power in government. The following chapter will go more into detail in this concept by discussing the modern views on government.
2.2 Modern View: The ‘Right State’
This section will go more into detail on how Western governments, and more specifically the government of the Netherlands, actually work. This means that the trias politica, the rule of law and the notion of the welfare state will be discussed. This serves partly to go back to the core of governments and to rethink the way governments work or should work. Moreover, its purpose is to give information on current governmental structures and to enlighten how the setting was created for modern public institutions.
Going back to the idea of the trias politica; it is thus a model of governance in which power is separated in three branches of government: the legislative power, the executive power and the judicial power. This serves to prevent abuse by the government, and the different governmental bodies also have the task to regulate one another, called the ‘checks and balances’ principle. For many Western governments, this is a basic, yet crucial element in their governmental structure. In the Netherlands, this formation is still present and in place. However, the three bodies in the Netherlands are not entirely separated. The executive power (the ‘regering’ or government) also has some legislative power (the ‘Staten
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Generaal’, consisting of the ‘Eerste Kamer’ and the ‘Tweede Kamer’) in the sense that it has to approve laws as well. Also, the ‘Raad van State’ (Council of State) is the highest Court in the Netherlands, but also has an advisory role to the government on the creation of laws, making it have legislative influences as well. This shows that constitutional systems can have minor differences that may have a large impact on the way governments work. In other countries, different types of power may be divided among other governmental bodies, depending on the system in place (e.g. a president in a presidential system may have executive power next to the parliament, such as in France or the USA).
In the Netherlands, the trias politica is one of the elements of the so called ‘rechtsstaat’, literally translating to ‘rightsstate’, or state of law. It is a form of government in which the exercise of governmental power is constrained by the law. It seems similar to the notion of the ‘rule of law’, yet the rechtsstaat also emphasizes what is morally right/valued (Schmitt, 1923: 42 & Silkenat et al., 2014: 29-43). In its most elementary form, a rechtsstaat is based on the following principles (Heringa et al., 2012: 13):
- The foremost principle of the State is that its existence and acts should be based on law, also called the ‘legaliteitsbeginsel’, or principle of legality.
- There should be a separation of powers (Legislative, Executive and Judiciary) in accordance to the model of Montesquieu
- The judiciary power should be, and be able to act independent and should keep an eye on the execution of the government and her authorities.
- The last main principle is the protection of constitutional rights.
In table 7 of appendix 6, different governmental traditions as Loughlin and Peters call it, can be viewed and compared to give an idea of the different principles that exist in Nation States (1994, in van den Berg, 2011: 88). This table shows that the Netherlands has a Germanic tradition, in which the state-society relationship is organicistic, the form of political organization is integral and policies are made by ‘muddling through’. In short, this means that policies are made in accordance with different political levels and with societal groups, and that they are made by small intertwining steps. Not only is the Netherlands a rechtsstaat, but also a social rechtsstaat, meaning that there are social rights written in the constitution. Social rights require that the government has an active obligation in securing a minimum of basic human needs.
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These social rights are also part of the notion of the welfare state, which is present in the Netherlands as well. Embedded in this notion, the government should grant a minimum of living, and has an active role in pursuing this concept, playing a key role in protecting and promoting social and economic well-being. The welfare state of the Netherlands is based on the ‘Rijnlands model’. This means that there is a relative high level of care, yet a stricter ascription of the social rights compared to the Scandinavian model. This does mean that taxes for families remain relatively high compared to most other countries. On top of being based on the Rijnlands Model, the Netherlands also has a sense of corporatism, specified in the ‘poldermodel’ in which organized interests are being incorporated in the decision making process (Andeweg & Irwin, 2005: 169). The poldermodel is aimed at reaching consensus between different interest groups. This is in short the system of the Netherlands that pursues social rights and is thus specifically aimed at reaching a minimum standard of living.
However, the welfare state of the 20th century is not what it used to be either. In his annual speech, the King of the Netherlands stated that the welfare state is unsustainable in its current form, and that it should slowly adapt to a participation society (Independent, 2013). The government means to implement a system ‘in which people must take responsibility for their own future and create their own social and financial safety nets, with less help from the national government’ (Independent, 2013). The worldwide financial crisis played a significant role here as well, as it showed that the typical Dutch poldermodel would be too costly for providing financial security nets. This movement from welfare state to participation society can be visualized in the following model by de Mooij (in Delsen, 2012: 27)
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Figure 1: From Welfare State to Participation Society (de Mooij, 2006 adapted by Delsen, 2012: 27)
This model thus outlines four different governmental perspectives, in which different governmental systems can be categorized (such as the Rijnlands model, the Scandinavian model, the Anglo-Saxon model etc.) According to de Mooij;
‘The Dutch welfare state may best be characterized on the left hand side [of the figure], somewhere between the social-democratic and the corporatist welfare state. Past reforms, however, also contain elements of the liberal welfare state, i.e. privatization of the social security and the introduction of the market in the provision of social protection as well as reforms that emphasize individual responsibility’ (De Mooij, 2006 in Delsen, 2012: 27). Including such a model may explain the way people think and behave with regard to change in their governmental system. Although the figure and the participation society is not directly related to environmental issues, it may help identifying how shifts in the governmental structure may influence citizen behaviour.
2.3 Developments since the 1990s
Because the Dutch administrative system may be influenced by external developments, it is necessary to dedicate a chapter to such changes in society. First however, a theoretical basis shall be given on the allocation of power in order to understand these societal developments better.
Some argue that the national government is losing power and control towards other sectors. Rhodes spoke of the hollowing out of the state in which he specified that the nature of public service was in transition because the processes of service provision in Britain are
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‘eroding’ to the European Union, local government and semi-public institutions. Does this also apply to the Netherlands? For the climate case, this is relevant as it may provide insights in how nation states lose power, and how that may influence the decision of the judicial power to order the Dutch government to increase efforts to reduce GHG emissions.
Van den Berg analysed the relation between the amount of power Nation States have in Western Europe and the amount of bureaucracy present. He found that governments had to adapt to their environment over the years. This created a process of transfer of legislative and executive powers in different directions; upwards, sideways and downwards (van den Berg, 2011: 372).
- Upward transfer is the delegation of power to supranational organizations, such as organizations in the European Union. According to van den Berg, nation states created such supranational institutes that indirectly developed a system and organizational culture of their own. This caused nation states to have a decreased amount of influence in their own borders, although this reduction is not the same for every government in the EU (2011: summary).
- Downward transfer is due to decentralisation so that local governments gain more autonomy in their decision making. Van den Berg mentions that this is type of transfer is often the cause of European integration, as local governments gain European financial means and access to the European arena, passing national obstacles. Secondly decentralisation reforms play a significant role in this type of transfer (2011: summary). - Sideways transfer is the allocation of power to organizations ‘next-to’ traditional governments (e.g. NGOs, semi-public and private organizations. According to van den Berg, this is due to the shift to the enabling state (or participation society) from welfare state, as discussed in the previous section. This shift is seen in reforms of privatisation, the forming of agents and liberalisation (2011: 373-375).
The distribution and balance of power thus remains open to change over time. With this information the different types of development that are relevant for this thesis shall be clarified. The first type of transfer is the development within the judicial sector. According to Besselink (1997) the judiciary bodies in the Netherlands have taken a larger share in power over time due to political and societal developments: ‘The balance of powers between legislature and executive on the one hand and the judiciary on the other, has shifted towards the latter. Both with regard to judicial review of legislative measures and with regard to
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judicial review of administrative action the courts have acquired and seized powers with regard to their proper function: that of providing protection to citizens. These developments cannot be said to have been triggered by the process of European integration within the EC and EU. But European integration has certainly contributed to them in its own way’ (Besselink, 1997: 321). This would thus be a reform based on sideways transfer, possibly triggered by European involvement from ‘above’. Bakolias however, enhances the role of civil society in the developments within the judicial sector, stating that non-governmental organizations and citizens have different (local) knowledge that would enrich this development (2000: 52). A different form of influence comes from globalization and the European Union. De Poorter mentions that the judicial branch on the one hand has to comply to the European and international legal order, which would need cooperation from this sector (2013: 95). On the other hand, member states still desire to have judiciaries independent from European or international influence. This arm pulling could thus have consequences for the national government in losing autonomy if the judiciary complies more and more to the international order.
A type of upward transfer, and an increasingly important development, is the role of European and international agreements. In the introduction of this research, the Paris agreement was mentioned to show the significance of the reduction of GHG emissions in an international field. This is just one of the international agreements within the theme of climate change. But what do these agreements actually imply? Are they merely guidelines, or can they force governments to do something using sanctions? How are such treaties reached, what consequences do they have and are they a source of external influence?
International agreements may come in different types and forms, such as conventions, memorandum, declarations, statutes etc. Different types emphasize different themes and address different concerns. The most typical and strongest legally binding instrument is the treaty. The Vienna Convention on the Law of Treaties defines a treaty as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.’3 It is thus a way for governments to bind themselves to achieve a certain goal, written in an official document. Such agreements
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can be legally binding. Being based on international law also means that there are means to force the parties to conform to the agreement. Other agreements, such as declarations, considerations and commitments do not necessarily have to be legally binding, but often do become a standard way of working. Such non-binding agreements can be preferred in certain situations due to political or moral concerns.
National engagement in negotiating and ratifying a treaty is influenced by different variables, including policy priorities, security concerns, economic concerns etc. (Kates & Katz, 2011: 459). International agreements then are often the result of several nations engaging in the international community for the interest of a specific policy. Ratification of international agreements is coordinated by the Vienna Convention on the Law of Treaties. This ratification process is concluded by approval of the Parliament or the governmental system in place, and may thus vary by country. In most countries, the constitution outlines which authority negotiates, concludes, signs and ratifies the treaty, which often involves both the executive and legislative branches of government (Kates & Katz, 2011: 460).
Treaties and other agreements are often signed after or due to an international conference as well. Since 1995, there have been climate conferences (Conference of Parties – COP) every year, held by the UNFCCC, in which ministers and the highest civil servants discuss the topic of climate change, policies and scientific evidence. Having such climate conferences every year is thus a relatively new method for addressing certain global issues. However, are there are also other ways to hold governments accountable for climate issues? Because what can citizens do if their government neglects or fails to achieve certain goals to protect their rights and lives?
‘It may seem that, in the absence of explicit treaties, states have no legal obligations to curb their greenhouse gas emissions. Yet, if emissions continue on their present trajectory, the harms they cause will reach catastrophic proportions, putting the human rights of billions of people in jeopardy. International human rights law is legally binding on states, which are, therefore, not free to continue business as usual. But how much do human rights and other sources of law require each state to do to reduce emissions, even in the absence of a specific treaty?’ (Website of the Global Justice Program, 2015).
This is the question which a group of professors were wondering about. The legal experts therefore produced the Oslo Principles, a document which set the obligations of States towards their citizens, justified by human rights law. In the case of climate change, the
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principles are aimed to help judges decide whether governments are in compliance with their legal obligations (Website of the Global Justice Program, 2015). The precautionary principles of the Oslo Principles require that (Oslo Principles, 2014: 3):
1. GHG emissions are to be reduced to the extent, and at a pace, necessary to protect against the threats of climate change that can still be avoided; and
2. The level of reductions of GHG emissions required to achieve this, should be based on any credible and realistic worst-case scenario accepted by a substantial number of eminent climate change experts.
The Oslo Principles are thus robustly formulated, but do not seem to get a lot of attention in international law. It can be questioned whether such principles, formulated by a private group, indeed can have an impact in international law. It is not binding for governments or a law that judges should follow, as it is no international agreement or treaty that governments have signed. On the other hand, the what if question always remains. There are always possibilities to imagine in which a clash between citizens and governments becomes insolvable through law, since these are made by government itself. Should citizens indeed then be able to create their own principles that should protect them from governments? Or should governments anticipate on such developments and adapt to these changes? For the thesis, these questions shall be taken into account when answering the research question.
The last development that shall be described is the increasing involvement of the third sector. The third sector involves the range of organizations that are neither public nor private and this would be a shift in the sideways direction as the power transfers to organizations next to traditional governmental organizations. They are characterized by their independence of governmental organizations, whilst still aiming for the public good. There are different organizational forms in the third sector, making the third sector an overlapping term. Examples of third sector organisations (TSOs) can be: voluntary organizations, community groups, non-governmental organisations (NGOs), non-profit organisations, interest groups etc. In the Netherlands, the term ‘third sector’ is relatively unknown and is generally referred to as the voluntary or community organisations. However these terms directly give the image that all of these organisations are purely voluntary, do not hire any employees and are not allowed to make any profit. Because of this, the definition of the third sector is used in this research. According to the British National Audit Office, these are the main characteristics of third sector organisations; a) they are independent of
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government, b) they are value-driven and c) are allowed to reinvest any surpluses into achieving their goals (UK National Audit Office, 2010). On top of that, they also mention the benefits of the third sector. In short, the third sector generally:
- Understands the needs of service users and communities that the public sector needs to address;
- Are in close contact to the people that the public sector wants to reach;
- Are able to deliver outcomes that the public sector finds it hard to deliver on its own;
- Innovates in developing solutions; and
- Have a relative high performance in delivering services.
Having such benefits in contrast to the public sector means that some services can be provided better and for the common good, but mostly at a local level. Other third sector organizations, however, work at a much larger scale with more complex problems.
When looking at environmental issues, the most noticeable third sector organization form is that of the non-governmental organization (NGO). Although the term is quite similar to the definition of a third sector organization in the sense that it is independent of government and works for the common good, NGOs are often particularly focused on environmental health, sustainability, human rights and international development. The term NGO is well-known in the Netherlands, but is very ambiguous in the sense that there are many sub-NGOs (acronyms, such as NGDO, ENGO, INGO, SCO and many more, all implying a different theme or addressing a specific form of funding).
So for what reasons are third sector organizations, and more specifically NGOs important to for analysing the case study and the shift in governance? Since the 90’s, the amount of NGOs rose enormously in number, but also in their involvement in global governance (Charnovitz in Gemmill & Bamidele-Izu, 2002: 2). This is a part of the shift to the enabling state itself, but NGOs also fulfil a function that public organizations are not aimed at. ‘NGOs and other civil society groups are not only stakeholders in governance, but also a driving force behind greater international cooperation through the active mobilization of public support for international agreements’ (2002: 2). On top of that the presence of the third sector and NGOs are fundamental for democratic values, as they form a platform for citizens to be heard, while governments sometimes find it hard to reach these citizens. On the other hand, the presence of NGOs in the policy cycle is controversial in the sense that they form a major stakeholder, without being chosen by citizens. This argument can
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however be countered by the fact that many NGOs are formed by citizens themselves. According to Gemmill and Bamidele-Izu, NGOs have five major tasks that they should perform in global environmental governance: (1) collecting, disseminating, and analysing information; (2) providing input to agenda-setting and policy development processes; (3) performing operational functions; (4) assessing environmental conditions and monitoring compliance with environmental agreements; and (5) advocating environmental justice (2002: summary).
In short, the third sector is thus still getting more and more important in (environmental) governance and such organizations are not only stakeholders, but also have different tasks and responsibilities than regular public organizations. Most importantly however, is the fact that they are aimed at achieving and maintaining a public good or public value. Having such information and classifications of TSOs in mind can help with analysing the research question as the increase in TSOs is an external development in itself.
So in what way are national governments affected by these three developments? Peters and Pierre mention that political power and institutional capability is less and less derived from formal constitutional powers by such types of transfers (2001: 131). ‘We have been witnessing a development from a ‘command and control’ type of state towards an ‘enabling’ state, a model in which the state is not proactively governing society but is more concerned with defining objectives and mustering resources from a wide variety of sources to pursue those goals’ (Pierre and Peters, 2001: 131). This development, combined with the fact that the functions of the state are redistributed in different directions may lead to the hollowing out of the state and may enhance the paradigmatic shift towards governance.
2.4 Governance: Multi-Level and Good
A current overarching development of the Dutch governmental system is thus the shift to governance. In order to answer the research question, theoretical knowledge on governance and concepts related to governance will be clarified. The following section will provide the information on the shift from government to governance, Multi-level Governance and Good Governance.
The difference in governance compared to government is at first sight a grammatical one. Even though governance is a noun, it implies a method or the act of governing. Government on the other hand refers to the system, body, authority or institution that rules
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the country (Fasenfest, 2010: 771). This difference is subtle, yet forms the basis of the academic difference between these concepts as well. Governance can be regarded as a development. According to Sundström and Jacobsson: ‘It marks a transition from hierarchical to more network based forms for decision-making, and a diffusion of boundaries between private and public actors. It also marks a shift in the way politicians govern both private and public sector activities’ (2007: 5). This transition could be the result of the hollowing out of the state, as described in the previous chapter (Rhodes, 1994, 1998). The reasons for this transition is due to changed conditions in complexity in social problems, a growing and more specialized public administration, increased demand for expertise, internationalization, decentralization, and a rapid development of information and communication technologies (Pollitt 2003; Jessop 2002 in Sundström and Jacobsson, 2007: 10). Stoker also claims that governance provides a new ‘reference point which challenges many of the assumptions of traditional public administration’ (Stoker 1998, p. 18). Governance then can be seen as a piece in the puzzle of these social phenomena. It is a model of governing that emphasizes cooperation, participation, embeddedness of different fragmented institutions, working together, networking and digitalisation. It visualizes the act of governing in a multi-level system, while at the same time it centres the citizen and corporatism. Again, this differs from the concept of government, which is more aimed at an autonomous and overarching actor. According to table 8 in appendix 6 by Leach and Percy-Smith, governance is partly similar to the concept of government, yet includes additional elements. As mentioned before, multiple actors join the policy arena, creating shared responsibility and the role of the state shifts to being one of the involved actors instead of the only provider.
The notion of governance creates the basis for related theories; Multi-Level Governance and Good Governance. Multi-Level Governance (MLG) is a less recent theory that comes forth from the structure of the European Union, analysed in the early 90’s. It is a theory opposed to the state-centric view, which assumes that governments are not harmed in their autonomy by European integration, due to the idea that governments get more control on policies outside of their national borders (Trnski, 2004: 25). In this approach, there is a clear separation of national and international policy. The approach of MLG however, assumes that authority and policy-making influences are shared across multiple levels of government, diminishing the amount of autonomy of a national government (2004:
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25). There are both vertical, as well as horizontal layers in governance that states that policy making not only takes place at different levels, but also within them, creating a complex overlap of institutions that will need to work together to reach a certain goal. However, this also means that there is a higher exchange of knowledge and information among different layers and sectors, allowing to enhance the policy implementation and outcome. For some policy fields, a MLG system is deemed necessary to solve certain wicked problems4, as they cannot be solved at a national level alone. Note that in MLG the word governance is used as well to emphasize the network relationships in which influences are shared across different levels, as opposed to government, which would highlight one dominant actor.
Then there is the idea of Good Governance, a perspective used in the context of international development to analyse and compare different relationships. It is a concept aimed to minimize corruption by incorporating eight characteristics to evaluate how ‘good’ a certain governmental system is. Again with governance, it includes multiple different stakeholders and actors. The views of minorities are specifically taken into account and the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society. The eight characteristics of good governance are: participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law (UNESCAP, 2009: 1).
The concept of Good Governance is an ideal type, meaning that it most likely cannot fully be implemented, but nonetheless governments should aim to meet the conditions as best as they can. It is also not about making ‘good’ decisions, rather it is aimed at having a upright process of decision making that is compromised out of the above characteristics. One critique on Good Governance is that the term itself is ambiguous and would leave no evaluative content. Many organizations use the notion of Good Governance in such a way that it fits their purpose. For example, the World Bank uses Good Governance in a setting of economic and social distribution, while UN organizations would use Good Governance to address human rights and democratic values. On the other hand, this elusiveness creates opportunities as better decision making processes can be implemented in different settings.
The shift to governance is conceptualized in current paradigms such as New Public Governance and Public Value Management (PVM), that aim to modernise governments and
4
A problem that is so complex that there is no specific solution, with no clear boundary to know if or when the problem is solved
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are critiques to the older paradigm of New Public Management (NPM). Conceptualized in the 70’s and early 80’s, NPM incorporated techniques from the private sector into the public sector, with the aim to improve effectiveness and efficiency and emphasizing input and output, privatization and viewed citizens as clients. As the successor of traditional public administration, it was a decent concept for that time. However, this concept cannot fully function nowadays, so new paradigms such as NPG and PVM were developed. Table 9 in appendix 6 by Bryson provides an overview of the differences between the three main paradigms of public administration (2006: 383). New Public Governance then is a network oriented type of governing aimed at interorganizational outcomes by enhancing dialogue and citizen involvement (Wiesel & Modell, 2014: 178). Because some scholars see the increasing importance of public values however, Public Value Management gets attention as well. Although similar to NPG in the sense that it fits in the network-approach of governing, the goal of PVM is to create public values that in turn result in a higher effectiveness in solving problems the public most cares about (Stoker, 2006: 44).
In short, this chapter thus focussed on governance as the academic discourse for many public organizations. This overall concept of governance is related to the theories of Multi-Level Governance, Good Governance and new paradigms such as NPG and PVM. It is no coincidence that all of these quite recent theories speak of governance instead of government. This shows the academic discourse of how governmental systems work nowadays, or should work in the future: network-oriented with a distribution of power among different layers and different actors. Understanding the development of governance is relevant for answering the research question, as it is an external development that might influence the Dutch administrative system and decisions made in the court case.
2.5 Summary & Synthesis
This theoretical framework serves to provide the background information needed to understand the case, to provide the academic discourse on current and historical concepts and to provide models to use in analysing the gathered data. This theoretical framework used a chronological order to grasp the different concepts. Starting by historical views on the public interest and public values, the theoretical framework shows that there are no objective definitions of these concepts. To make these concepts thus clear, a table is provided in which different philosophical schools are categorized. These perspectives can
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help in this thesis to understand the decisions made by the different involved actors. Secondly, the modern aspects of governments were described to understand how the Dutch administrative system are made up out of different mechanics. The Germanic tradition, its type of welfare state and the Dutch view on the trias politica are elements of the system that will allow to explain the correlation between the decisions made in the court case and the Dutch administrative system. Thereafter, the external developments that are closely related to the court case were examined that may influence the Dutch administrative system so that the setting of the court case gets enlightened. Lastly, current ideas on how the administrative system may be embedded in the notions of Multi-Level and Good Governance were identified to so that the influence of these concepts can be analysed.
The different concepts explained in the theoretical framework are not only related by the fact that they are in chronological order, but in their relation to the reduction of GHG emissions as a common issue as well. It is a public good, and its significance is defined by the public interest. It is therefore regarded that such an issue needs a political and governmental approach or solution. The information on the modern views of the Dutch administrative system, its related external developments and current notions of governance can then help in answering the research question how the decisions made within the court case are influenced by the total of the Dutch administrative system. The methodology will explain how the research question will be answered.
Having this theoretical framework can also serve to notice and fill the gap in the literature. While New Public Governance and Public Value Management are paradigms that are widely studied in recent years, their practical implications remain hard to grasp. Authors agree that a new paradigm would be better applicable to current ideas on governance than New Public Management (Osborne 2010, Moore 1995, Stoker 2006, Denhardt & Denhardt 2011), but there is no consensus yet on what this new paradigm would be called, let alone its practical implications (Bryson, 2014). This thesis can therefore provide insights into the way politics and policies are shaped by the current discourse of NPG and PVM since the roles of governance, public values, civil society, the enabling state, the hollowing out of the state etc. are closely related to these new paradigms.
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3 Methodology
‘If we knew what it was we were doing, it would not be called research, would it?’ - Albert Einstein
Now that the theoretical framework has been set, the methodology of this research shall be described. This section will serve to make the research comprehensible by explaining how the research was set up, how the data was collected and how this data will be used. This chapter will start by describing the research design, which will provide the outline of this study. The methodology will then give an overview and explanation of relevant variables and how the research question will be operationalized. Given this information, the hypotheses will be defined by stating what to expect from the data and analysis. This section shall end with explaining what data was gathered and with describing possible shortcomings of the research design. The purpose of the methodology overall is to explain why and how this research will aim to answer the research question.
3.1 The Research Design
The research question was formulated as following: ‘To what extent are the decisions made within the climate case in the Netherlands influenced by the Dutch administrative system?’. The research question thus focuses on the correlation between the way the Dutch government works and the decisions made with regard to the court case. The question itself is explanatory in nature as it will serve to explain if and how the court case is typical for the Netherlands, its governmental structure and societal norms. In a way, it is also exploratory as it provides knowledge for examining developments in the way governments work nowadays. The research question makes the study deductive as it calls for measurable hypotheses and confirmation (or rejection) of current theories. To measure these hypotheses, this research uses the decisions made in the climate court case as the unit of observation, while the units of analysis are the social interactions of the involved actors and the social organization in which they are embedded, as this is what needs to be analysed to answer the research question.
The court case of Urgenda was chosen as the case study because it was the first case won against a government concerning the reduction of GHG emissions. The case thus has the most progress and data available (both in English and in Dutch), making it appealing to research. The case study is chosen as the effective research method, as it allows to gain more in-depth information on the case and to translate this to the larger concepts. Not
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much is known yet of the case itself and because the court case is so unique, it may give new insights in the interaction and position between public organizations. Moreover, the analysis shall be built upon a single-case study design. This is because in-depth knowledge on the case is the main priority, while comparisons to other court cases would not suit the research question. A few paragraphs will be dedicated to similar court cases abroad, but with the aim to understand the case in the Netherlands better rather than to compare these cases. The single-case study design means that the research will not be generalizable to other countries or cases, but it can be fundamental for future comparisons as it can show its relation to administrative systems.
Having a single-case study design, combined with multiple units of analysis, the research is classified as an embedded single-case study design. The explanatory nature, using a single-case study to gather data and to understand underlying principles, makes this research qualitative. Qualitative data in this sense is aimed to analyse human behaviour and social interactions in order to describe a certain phenomenon; the climate court case in the Netherlands. This goes hand in hand with the data gathering techniques of this study, as the main data that will be used is not numerical but mainly consists of written documents and opinions, making it qualitative research in turn.
3.2 Conceptualisation
Because the research has a qualitative nature, the different concepts that will be analysed in this research will have to be ordered and clarified. This section will serve to explain the main factors, concepts and variables to be studied, and their presumed relationship among them.
The research question is formulated so that the ‘decisions made within the climate case’ is the dependent variable, as it is presumed that these decisions will be influenced in some way by the Dutch administrative system. The dependent variable will thus be analysed on the decisions and the verdict of the climate case as spoken by the judge of the civil section of the Court of The Hague, but will also involve the process, jurisdiction and arguments made by the involved actors. It is expected that the verdict is influenced by the ‘Dutch administrative system’. This is therefore regarded as an independent variable, which consists of different elements. The Dutch administrative system is constantly evolving due to changes in society. ‘The external environment may have influenced both of the
