The Urgenda Case: A New Standard for
Environmental Litigation?
Name: Eva Scholten
Student number: 10123253
Mater track: International and European law: Public International Law Supervisor: Rene Lefeber
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Table of Contents
Introduction 2
Chapter 1: An introduction to international environmental law 4
Chapter 2: Climate change and human rights 10
Chapter 3: Concepts in climate change litigation 14
Chapter 4: Urgenda v. the Netherlands: An exceptional case 25
Conclusion 35
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Introduction
There are many cases in which individuals suffered from environmental pollution caused by state acts or, in some cases, a lack of state action. In several of those cases individuals successfully invoked human rights law in order to hold the state responsible for the damages and to claim reparation for their injuries. In this way, human rights have created a framework of environmental protection, even though the European Convention on Human Rights (ECHR) for example contains no environmental rights. Invoking human rights when seeking reparation for injuries caused by environmental pollution is quite common in Europe; the European Court of Human Rights (ECtHR) has ruled on several of such cases.
Most recently Europe has seen another type of environmental case. The Dutch state was sued by Urgenda, a foundation aiming for a fast transition towards a sustainable society. Urgenda argued that by not doing more to bring down greenhouse gas emissions, the Dutch state violated the duty of care, found in article 6:162 of the Dutch civil code. In June 2015 the Dutch court ruled on this case. The Dutch state lost and is now required to bring down its emissions with at least 25% by 2020.
The Urgenda case is reminiscent of so-called public interest litigation. Public interest litigation seeks to protect the public interest by starting legal actions in order to bring about social change, often using tort law and human rights law. In the Urgenda case, the goal is to create a more comprehensive system of environmental protection by asking the court to force the state to take appropriate measures. Public interest litigation is quite established in common law systems. There have been many cases where this type of litigation has been used to get a court ruling on social or environmental issues, not always with equal success.1 In Europe, however, this phenomenon is (still) quite rare.
Before the court ruled on the Dutch Urgenda case, it seemed as if human rights would play a big role in the decision. In previous cases human rights were successfully invoked in order to create a higher level of environmental protection. However, it turned out that human rights only played an additional role. Instead, the obligation of due care turned out to be the most important aspect of the case. It was the first time a court ruled that this obligation could be used to force a state to take additional measures regarding greenhouse gas emissions. The Dutch state argued that this
1 Some examples of public interest litigation around the word: In the UK, on assisted suicide, R (Purdy) v DPP (2009) UKHL 45; in India, on gender justice, Vishaka and Ors Vs. State of Rajasthan and Ors. (JT 1997 (7) SC 384); in South Africa, on same sex marriage, Fourie & Another v Minister of Home Affairs & Others [2004] ZASCA 132; 2005 (3) SA 429 (SCA); in the United States, against the construction of a power plant, Scenic Hudson Preservation Conference v. FPC. (354 F.2d 608, 1 ERC 1084) (2d Cir. 1965).
3 obligation could not be used to force the state to take measures. Climate change is a political topic and by forcing the state to take measures, the judge oversteps its boundaries and enters into the domain of the legislator.
The Urgenda case seems to have created a precedent for a new type of environmental litigation in Europe, despite the fact that it is a national case and that the Dutch state has lodged an appeal. The goal of this thesis is to assess why the outcome of the Urgenda case is groundbreaking and how this groundbreaking outcome can influence the state of the law in environmental litigation.
To find an answer, it is important to get an overview of the existing framework of environmental law. This overview is provided in the first chapter. In this chapter, the limits of this system will also be presented. These limits will lead us to the second and the third chapter, where alternative ways of environmental protection through the law will be discussed. The second chapter is devoted to the link between climate change and human rights. Even though Urgenda could not rely directly on human rights provisions, the ECHR did play an important role in the case. The third chapter provides an overview of climate change litigation. Case law and literature will be analyzed in order to see if certain principles in environmental litigation exist. In the final chapter, we will get to the Urgenda case. First, a detailed overview of the case will be provided. Second, we will analyze the international importance of the case. Finally, in the conclusion all the information will be put together to understand why the Urgenda case is groundbreaking and how it could change the state of the law in environmental litigation.
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Chapter 1: An introduction to international environmental law
The development of international environmental law did not start until the 1960s, but today, it is one of the largest fields of international law. Policy following from the international agreements focuses on both mitigation of climate change and adaptation to the consequences of a changing environment. Law alone cannot solve environmental problems; we also need political commitment from states and technological innovations. Furthermore, as there is no distinct body of environmental law, rules on the environment come from many different sources. However, for the purpose of this thesis it is useful to give an overview of the existing framework of environmental law. This framework, with its many conventions and agreements, played an important role in the case that Urgenda has brought against the Dutch government.
A very brief history of the development of international environmental law
In 1972 the first global conference dealing with environmental issues took place in Stockholm. Some of the major outcomes of this conference include the establishment of the UN Environmental Program (UNEP), a new UN institution that would administer the Action Plan that was also adopted at the conference. Together with the World Meteorological Organization, the UNEP established the Intergovernmental Panel on Climate Change (IPCC) in 1988. The IPCC has grown to be an important scientific body, under sponsorship of the UN.2 In their reports, they provide the world with a scientific view on the current state of knowledge on climate change. Currently, 195 States are party to the IPCC. Their last report, the fifth assessment report, was published in 2014.
Another important aspect of this first conference in Stockholm was its strong human rights perspective. We still see this connection between human rights and the environment in more recent declarations. For example the 1992 Rio declaration and the most recent Paris agreement both mention the right to development. Nowadays, human rights, especially the right to life, are invoked in many environmental lawsuits, including in the Urgenda case. The next chapter will be devoted to human rights and the environment. However, most of the provisions in the Stockholm declaration were oriented at actual development of policy. For example, they relate to the safeguarding and management of the environment and natural resources,3 pollution control,4 and the future development of international law on liability and compensation for environmental harm.5
2 IPCC (2015), organization, available at https://www.ipcc.ch/organization/organization.shtml, retrieved 28 December 2015.
3 Stockholm Declaration, principles 2-5, 12-17. 4 Ibidem, principles 6 and 7.
5 Another defining moment in the development of environmental law, was the publication of the Brundtland Report in 1987 (also known as Our Common Future). This report was published by the Brundtland Commission (back then known as the World Commission on Environment and Development). This commission was established by the UN in 1983 to do research on the deterioration of natural resources, and to urge countries to work together to solve environmental problems.6 Following from the recommendations made in this report, the UN convened the UN Conference on Environment and Development (UNCED), which met in 1992 in Rio de Janeiro. At this meeting, the participants adopted, amongst others, the Rio Declaration on Environment and Development. This declaration is probably the most significant universally accepted statement of general rights and obligations of states affecting the environment.7 Another important decision made there was the adoption of the UN Framework Convention on Climate Change (UNFCCC). Today, the UNFCCC has virtually universal membership. It is seen as the key convention in the political response to climate change. After the first UNCED conference in Rio, there have been two other UNCED conferences: The 2002 earth summit, held in in Johannesburg and the earth summit 2012, again in Rio de Janeiro. The documents adopted at these conferences are only important because they serve to underline, again, the importance of the legal principles agreed on in 1992. As Birnie, Boyle and Redgwell suggest, they have not done what is actually needed; implementation of the UNCED instruments and progress towards the goals that the parties have agreed on.8
From 1995 onwards, the parties to the UNFCCC have met annually in a Conference of the Parties (COP). In 1997, the Kyoto protocol was adopted at the third COP, in order to achieve greater emission reductions. In 2005 the Kyoto protocol entered into force. In 2007, at the thirteenth COP, the parties adopted the Bali Road Map. This road map was meant to set up several working groups to facilitate implementation of the aims set out in the UNFCCC. In 2010, this resulted in the Cancun agreements. One of the most important aspects of the Cancun agreements is the commitment to stay below a global rise in temperature of two degrees, as was advised by the IPCC in their fourth assessment report. In this report, the IPCC agrees that a higher rise would pose significant risks to for example biodiversity.9 However, there is a growing group of countries that considers the two-degree threshold to be too high, their aim is to limit the temperature increase to 1.5 degrees. This opinion was acknowledged in the Cancun agreement of 2010.10 The Paris agreement of December 2015
6 UN General Assembly, resolution 38/161 of 19 December 1983 on the process of preparation of the Environmental Perspective to the Year 2000 and Beyond.
7 Birnie, P., Boyle, A. and Redgwell, C. (2009), International Law and the Environment, p. 112. 8 Ibdem, p. 53.
9 IPCC fourth assessment report, available at
http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_full_report.pdf, retrieved 23 October 2015. 10 UNFCCC (2010), Decision 1/CP.16, see paras 4 and 136.
6 confirms the 1.5 degree threshold as a new goal; the global increase in temperature must be held “well below 2 °C above pre-industrial levels” and efforts must be made to “limit the temperature increase to 1.5 °C above pre-industrial levels” because it would “significantly reduce the risks and impacts of climate change”. Furthermore, the IPCC is invited to provide a new report on the impacts of an increase in temperature of 1.5 degrees.11 However, this universal acceptance of the 2 degree, or even 1,5 degree threshold is not reflected in the current policies of the states.12
Principles of international environmental law
As mentioned above, the 1992 Rio Declaration on Environment and Development sets out principles of environmental law. Later agreements have built on this, confirming and adding to these principles. However, the Rio declaration in itself is not binding law. The declaration reflects consensus amongst developed and developing states. This means the declaration can influence the development of the law and can be norm-creating. Furthermore, most principles start with ‘States shall’, which is obligatory language compared to the weaker ‘States should’. However, despite the use of the word ‘shall’, the Rio Declaration on Environment and Development still consists of legally non-binding principles. Birnie, Boyle and Redgwell explain that its value lies in the fact that it tells us what states believe the law to be, or how they would like the law to develop.13
The goal of the UNCEP Conference, of which the Rio declaration was a part, was to set up a new global partnership; it recognizes the integral and interdependent nature of the earth. This shows that the protection of the environment can be seen as a common concern of mankind. We see something similar in the 1992 UNFCCC. There it is stated that “change in the Earth’s climate and its adverse effects are a common concern of humankind”.14 This way of framing the problem gives rise to the following principles. One of the most notable principles recognized in both the Rio declaration and the UNFCCC is that of common but differentiated responsibilities.15 It means that developed nations are supposed to take the lead in combating climate change. Historically, they have been the biggest polluters, and this has contributed to their wealth today. As a result of their different responsibilities, and to find a balance between mitigation and development, the precautionary approach should be applied by states according to their responsibilities. In addition, lack of full scientific certainty shall not be used as a reason for postponing measures when there are
11 UNFCCC (2015), Decision 1/CP.21.
12 With current policies, global temperature would rise with 3,6 degrees above pre-industrial levels. Climate action Tracker, http://climateactiontracker.org/, retrieved 6 November 2015.
13 Birnie, P., Boyle, A. and Redgwell, C. (2009), International Law and the Environment, p. 112. 14 UN, United Nations Framework Convention of Climate Change (UNFCCC), New York, 4 June 1992. 15 UNEP, Rio declaration, principles 6 and 7; UNFCCC, article 3(1).
7 threats of serious or irreversible damage.16 Another principle in international environmental law is the obligation to prevent transboundary harm. Principles 19 of the Rio declaration refers to this principle; states must consult each other when a project is likely to cause to transboundary harm. There is also the polluter pays principle, which can be found in the Rio declaration principle 16. Such principles may not be hard rules or obligations, but they can provide guidance on how to resolve a dispute. They lay down parameters which affect the way courts take their decisions.17 The ICJ refers to the principles in for example the Gabcikovo-Nagymaros case. In this case, the court acknowledges new norms and standards of sustainable development in order to protect the environment; existing treaties have to be interpreted in the light of these new norms. As a result, the parties must together find a solution for possible transboundary harm, taking into account the norms and standards of sustainable development.18 Other well-known cases on principles of environmental law are the old Trail Smelter case, on transboundary pollution,19 and Pulp Mills, on the assessment of possible harmful impacts of projects on neighboring states.20
States keep adding new declarations, recognizing the environmental problems and the principles set out above. Some principles can be invoked before courts, and courts can use them as guidelines to solve disputes. Despite all this, current state policies are still not sufficient to stay below two degrees.21 The UNFCCC treaty and the conferences where the parties to the treaty (COP) meet exists as tools to solve the problem, but political will amongst the state parties is lacking.
A political problem?
The COP serves as a political forum where states can discuss climate change and measures to mitigate it. This means that the COP, in theory, has the capacity to take appropriate measures, but so far it has not truly succeeded in doing so. Especially the COP meeting in Copenhagen in 2009 demonstrated this problem. At the end of the negotiations there was no legally binding agreement. In addition, most countries were left out of the final stages of negotiating this agreement. One may ask why is it so hard for states to make binding commitments that will actually keep global warming below two degrees? The issue is that climate change is a problem of a global scale; it affects everyone and everything around the world. As a result, a solution must also be found on a global scale. In this sense, climate change could be described as a tragedy of the commons. All states act
16 UNEP, Rio declaration, principle 15; UNFCCC, article 3(3).
17 Birnie, P., Boyle, A. and Redgwell, C. (2009), International Law and the Environment, p.28. 18 Gabcikovo-Nagymaros Dam Case, ICJ Reports (1997), para 140.
19 Trail Smelter Arbitration, 33 AJIL (1939) 182 & 35 AJIL (1941) 684.
20 Pulp Mills on the river Uruguay Case (Provisional measures)(Argentinav. Uruguay) ICJ Reports (2006). 21 With current policies, global temperature would rise with 3,6 degrees above pre-industrial levels. Climate action Tracker, http://climateactiontracker.org/, retrieved 6 November 2015.
8 according to their own self-interest, exploiting their natural resources and striving for ever-increasing economic growth. However, by doing this, states behave contrary to the interest of the entire world. This is why a solution must be found on a global scale. If only one state decides to fight climate change, this will not have a big impact; instead, all states need to be on board.
However, finding a solution on a global scale is difficult. The UNFCCC has over 190 parties, and could be described as fragmented and highly conflictual.22 This makes it incredibly difficult to find a solution that works for all the parties. Especially because climate change is not a problem that exists in isolation, solutions will likely have serious consequences for other domains that concern the state, such as trade and economic growth. Timmons Roberts et al. have made a study on treaty ratification rates for environmental agreements and they have found that states are more likely to ratify a treaty when in contains provisions on development assistance and mechanisms for wealth distribution. Another aspect that they found to be of great importance for treaty ratification is the status of civil society in a state.23 Another study, by Joyeeta Gupta on how climate treaties are negotiated, identified the problem that countries could not agree on how responsibilities should be shared between the different parties. She argues that states fail to take a long-term view. They see the problem in terms of ‘winning’ and ‘losing’. Taking too many or very strict measures will affect their position vis-à-vis other states.24
These studies show us that there are different factors, besides environmental and economic concerns, that play a role when finding a way to mitigate climate change. Despite the shortcomings, especially with implementation and enforcement, the current framework of negotiating climate change agreements will remain the dominant way to find solutions. There is an impressive framework of climate change agreements. Both scientists and heads of state agree on the urgent nature of the problem, yet the final step, to take political action, lags behind. In the light of the situation discussed above, it is understandable that parties such as Urgenda take environmental problems to court.
Even before the court, this question of political will played a role. The Urgenda case is reminiscent of so-called public interest litigation. Public interest litigation seeks to protect the public interest by starting legal actions in order to bring about social change, often using tort law and human rights law. In essence, it means asking the court to make a state change its behavior or even its laws when citizens feel like the state is failing. Enneking and de Jong wrote that it was a matter of
22 Timmons Roberts J., Parks B., and Vasquez A. (2004) ‘Who ratifies environmental treaties and why? Institutionalism, structuralism and participation by 192 nations in 22 treaties’. Global Environmental Politics 4:3, p. 22.
23 Ibidem, p. 45.
9 time before a public interest case on climate change litigation appeared in a Dutch court. They argue that a court must consider its options very carefully in such a case. The state has a certain margin of appreciation and an order against the state could have huge political consequences. On the other hand, one could argue that when the gravity of possible consequences increases, like in the case of climate change, the margin of appreciation of the state decreases.25
In the Urgenda case the goal of the plaintiffs is to create a more comprehensive system of environmental protection by seeking a court order to force the state to take appropriate measures. Understandably, the Dutch state has argued that this is not up to a court to decide, because it would require the state to change its legislation on a politically sensitive topic. The Dutch state has argued that environmental legislation requires political considerations that can only be made by the government and the legislator because it potentially has consequences for the Dutch society. The case brought by Urgenda raised political questions, and only the government and the legislator have the democratic mandate to answer such political questions.26 This is the so called ‘political question doctrine’. As we will see in the last chapter, the court did not agree with the Dutch state. This case shows that political problems do not only feature in climate negotiations, but also in court cases.
Chapter 2: Climate Change and Human Rights
25 Enneking,L., and de Jong, E. (2014), ‘Regulering van onzekere risico’s via public interest litigation?’, Nederlands Juristenblad 23, p. 1551.
10 One of the remarkable aspects of the Urgenda case, is the invocation of human rights. This chapter introduces the link between human rights and the environment. The existing legal framework of environmental protection in human rights treaties will be set out, and used to explain the opinion of the court in this case on the invocation of human rights. The court has only used human rights to interpret other norms, as Urgenda could not rely directly on any ECHR provisions.
Human Rights in the Urgenda case
The Dutch state has positive obligations under the European Charter of Human Rights (ECHR). Urgenda asked the court to compel the Dutch state to act in accordance with those positive obligations. This meant, according to Urgenda, that if the Dutch state failed to decrease their emission levels, it would endanger the active enjoyment of the right to life (article 2 ECHR) and the right to private life and family life (article 8 ECHR). 27 An increase in the global average temperature of more than two degrees above pre-industrial levels would especially endanger the enjoyments of these human rights. The Dutch state argued that the two degrees threshold could still be met. This would mean that there is no threat to the active enjoyment of human rights, as argued by Urgenda. Furthermore, the Dutch state claims that the state always has a wide margin of appreciation in cases of interpretation of articles 2 and 8 ECHR.28
It is possible to rely on ECHR articles before a Dutch court because most articles in this treaty have direct effect and contain, according to Dutch law, rights and obligations for the Dutch state.29 Relying on these articles could also make the case of more value for similar proceedings in other European countries, as they are all bound by the ECHR. On the basis of article 34 ECHR, in all the countries where the ECHR applies, any person, non-governmental organization, or group of citizens claiming to be a victim of a violation of one of the rights in the Convention, can bring a case before the European Court of Human Rights against a member state. Urgenda argued that it could invoke articles 2 and 8 ECHR in their own name and in the name of the citizens they represent. Urgenda said the Dutch emissions were unlawful towards them and the Dutch state violated the duty of care and this infringed the rights that Urgenda and the citizens enjoy under articles 2 and 8 ECHR.
How human rights have been connected to the environment
27 Urgenda, dagvaarding klimaatzaak 20 November 2013, para 233.
28 Pleitnota mr. Brans en mr. Houtzagers, rechtbankzitting 14 April 2015, paras 6.10, 6.11 and 6.12. 29 As set out in articles 93 and 94 of the Dutch constitution.
11 The Urgenda case may be the first case where human rights are used as a legal basis to protect citizens against future climate change, but it is certainly not the first time human rights and the environment were seen in connection to each other. For example the UN Human Rights Council has acknowledged the danger that climate change, and especially global warming of more than two degrees poses for the effective enjoyment of a wide range of human rights.30 The Council of Europe has also published a ‘Manual on Human Rights and the Environment’. The aim of this guide is to increase our understanding of the connection between human rights and the environment in order to strengthen environmental protection at the national level. This guide is based on the many environmental cases that have come before the ECtHR. Even though the Convention does not contain any provisions on the environment, the Court has decided in various cases that articles 2 and 8 can also apply in cases of environmental harm. In these cases, the ECtHR has found that states are under a positive obligation to take measures in the event of potential violations of articles 2 and 8 due to environmental pollution.31We can see here that the Court has decided to give a wide interpretation to some of the articles. Some of these cases will be briefly discussed in the next chapter.
What we see in the Urgenda case, and also in many other cases where human rights are linked to the environment, especially before the ECtHR, is a so called ‘greening’ of existing human rights law, instead of the recognition of actual environmental rights. The focus lies on the harmful effects for human beings, not on the environment itself. Other approaches, where the focus lies more on the environment itself, would be to create a right to a clean environment, or to treat environmental quality as a community right, to give communities a right to determine on the use and protection of natural resources. According to Alan Boyle, the approach taken by the ECtHR is usually favored over the other approaches. This approach is often seen as less problematic because it is less vulnerable to tradeoffs against other rights, such as the right to economic development.32 Of all the human rights treaties, only the 1981 African Charter on Human and Peoples’ rights contains some broad substantive environmental rights.33
In order to ‘green’ existing human rights treaties, states don’t have to conclude new treaties. In many cases, courts will do the ‘greening’; they will interpret existing human rights treaties to cover some environmental rights. This is not necessarily the most favorable way to protect the
30 UN Human Rights Council, resolution 10/4 of 2009.
31 See for example ECtHR, Oneryildiz v Turkey App no 48939/99 (ECtHR, 30 November 2004); Budayeva v Russia App no 15339/02m 21166/02, 11673/02 and 15343/02 (ECtHR, 20 March 2008).
32 Boyle, A. (2008), ‘Human Rights or Environmental Rights?: A Reassessment’, Fordham Environmental Law Review, 18:3, p. 2.
33 African Charter on Human and Peoples' Rights, articles 16 and 24; see also the Ogoniland case before the African Commission on Human and Peoples’ Rights.
12 environment, as the environment remains secondary to the protection of humans, and does not become a right in itself. But it seems to be the most feasible option, and since the Convention has an evolutionary character, it can even offer the same level of protection in the long run. When we look at the cases before the ECtHR, Boyle argues that the Charter now covers all aspects of the right to a healthy environment, as we can find it in the African Charter.34 However, according to Boyle, this is still a rather narrow understanding of the concept, since it is still related to humans and benefits only the victims of a violation of their rights. He argues that this approach seems to rule out the possibility of public interest litigation to protect the environment under existing human rights treaties.35
The court on human rights
As for the Urgenda case, it seems that Boyle’s prediction was right. As mentioned earlier, on the basis of article 34 ECHR, any person, non-governmental organization, or group of citizens claiming to be a victim of a violation of one of the rights in the Convention, can invoke the ECHR. This means that Urgenda had to prove before the Court that it was a victim. It must prove that the conduct (or the lack thereof) of the Dutch state is a violation of articles 2 and 8 ECHR, and this violation actually has an effect on Urgenda. In this case, the Court found that Urgenda was not a direct victim in the sense of article 34 ECHR of alleged violations of articles the 2 and 8 ECHR. The Court went on to say that Urgenda is a legal person, and unlike a natural person, its physical integrity cannot be violated and its private life cannot be interfered with in the same way. Even if the Court would interpret the aims of Urgenda in such a way that it includes the protection of the Dutch society and all other citizens of the world against violations of their right to freedom and private life, Urgenda still would not have the status of a potential victim in the sense of article 34 ECHR. As a result, the Court found that Urgenda could not rely on articles 2 and 8 ECHR to support their claim.36 In addition, the Court was of the opinion that the 886 individuals, who had brought the claim together with Urgenda, did not have sufficient (self-) interest besides the general interest of Urgenda. This is why the Court rejected their application.37
However, the Court did say that the articles 2 and 8 ECHR, and the way the ECtHR has interpreted them, especially in cases concerning the environment, can be used to interpret other rights invoked in this case. The Court especially used the articles to interpret the standard of due
34 Boyle, A. (2008), ‘Human Rights or Environmental Rights?: A Reassessment’, Fordham Environmental Law Review, 18:3, p. 30.
35 Ibidem, p. 31, 32.
36 Rb. Den Haag, Urgenda zaak, para 4.45 37 Ibidem, para 4.109.
13 care, found in article 6:162 BW (Dutch civil code).38 In conclusion, human rights could not be directly invoked in this case, but they were used to interpret other norms. This actually led to the outcome that Urgenda had hoped for. The District Court of The Hague ruled that the Dutch state must do more to bring down greenhouse gas emissions in the Netherlands. In 2020, the emissions must be reduced by at least 25% compared to the emissions in 1990.
38 Rb. Den Haag, Urgenda zaak, para 4.46.
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Chapter 3: Concepts in climate change litigation
In the last chapter I analyzed the existing climate regime and concluded that this regime is not sufficient to bring down CO2 emissions or to solve the problems resulting from climate change. There is a global problem but a global solution or a global institution to mitigate the problem is lacking. This is why injured parties are increasingly turning to courts, both regional human right courts and national courts, to address this global problem. This is climate change litigation. Courts can play a role in the solution of a global problem, exactly as was envisioned in the Johannesburg Principles on the Role of Law and Sustainable Development that were adopted at the global judges symposium in 2002. In these principles, we can read that: “members of the Judiciary, as well as those
contributing to the judicial process at the national, regional and global levels, are crucial partners for promoting compliance with, and the implementation and enforcement of, international and national environmental law”.39 Although this is only a guideline for judges, it is still an important fact in underlining that local judges have in fact a very important role to play in the solution of the global problem that is climate change. Their role will be discussed in this chapter and climate change litigation in both national law and international human rights law will be taken into account. By analyzing literature and several high-profile cases, I hope to find whether there are some established concepts in climate change litigation and what these concepts entail.
Different types of climate cases
Before analyzing any case law, it is useful to delineate the different types of climate cases that have been brought before courts so far. Indeed, applicants have been creative in bringing different types of cases, as this area of litigation is still underdeveloped in comparison to, for example, human rights law. There are many other possibilities besides the distinctions discussed here, but the ones identified here are most important for the goal of this thesis. In the first place, we can make a distinction on the national level between civil cases and administrative cases. Most of the civil cases are against companies. Civil cases against government bodies are rare but do exist, as we will see in the last chapter of this thesis. Civil cases usually need to overcome some considerable hurdles before they can be successful, such as proving a causal link and harm. Administrative cases brought against government bodies and administrative agencies usually face less obstacles, but can only be brought against government decisions, which is not always an option as we will see in the last chapter as well.
39 Johannesburg Principles on the Role of Law and Sustainable Development of 20 August 2002, available at
http://www.unep.org/Documents.Multilingual/Default.asp?ArticleID=3115&DocumentID=259, accessed 18 September 2015.
15 The second distinction we can make is between cases that invoke human rights in order to protect the environment and cases that do not. There have been several cases where human rights have been invoked before a court in order to protect the environment, and the United Nations Human Rights Council even adopted some resolutions linking climate change to human rights.40 In these resolutions we find that climate change can have an impact for example on the rights to life or the right to adequate housing. Indeed, we see that these rights have been invoked in several cases. Climate change litigation through human rights has the potential to be quite successful, especially in cases where harm has already occurred. The field of human rights law is currently more developed than the field of climate change law, so by linking the two it could be possible to get a higher degree of protection for the environment as well.
The final distinction that I make is between the national and international level. There is no international body set up to settle climate change cases specifically. As a result, applicants very often turn to national courts. In international climate cases we can see that human rights are invoked, especially the cases before the European Court of Human Rights are notable, because the charter does not contain any rights to a clean or safe environment. In the 1981 African Charter on Human Rights and Peoples’ Rights we do see a right to “a general satisfactory environment favourable to their development”.41 This right was famously applied in the Ogoniland case. The court held that severe pollution of the environment can mean that it is no longer a ‘general satisfactory environment’.42
The goal of this thesis is to get a better understanding of the Urgenda case. This case is a civil law case, invoked by an NGO at a national level. It is a case in which human rights were invoked but they turned out to play only a minor role. This is why the main focus of this chapter will be on cases with matching elements, insofar as they exist. Of course it would not be possible to only focus on similar cases, as the field of climate change litigation is still developing and other cases that have contributed to concepts in climate change litigation will therefore also be considered.
Climate change before a court
This section will discuss how one can bring a climate change case before a court. This will mainly be done by analyzing several climate cases. The issue that needs to be overcome in all cases is that of standing: who has standing and in what case? There are small variations between formulations of who has standing in different legal systems but in general, where an obligation owed to one party is
40 See for example resolution 7/23 of 28 March 2008 and resolution 18/22 of 17 October 2011. 41 African Charter on Human and Peoples' Rights, article 24.
16 violated by another party, the plaintiff needs to prove injury and a causal link between the violation and the injury. These aspects are important in both civil and administrative cases. Proving injury is more difficult for some parties than for others; in general, individuals are more likely to suffer direct harm than NGO’s, which usually act in the interest of larger groups. Proving a causal link can also be problematic as the effects of climate change are felt worldwide and there is nearly no single person, government or company that is not contributing to climate change. These aspects will be discussed in several cases described in this next part.
One of the most famous cases in climate change litigation is Massachusetts v. EPA. This is an administrative case at national (US) level where states, cities and NGO’s together sued the United States Environmental Protection Agency (EPA), which is a federal government institution. In this case, the EPA had refused to regulate greenhouse gas emissions, as it should have under the Clean
Air Act. The EPA had to prescribe which standards would apply to emissions of air pollutants from
any class of new motor vehicles. The EPA had refused to do this, as it did not see the greenhouse gas carbon dioxide as an air pollutant within the meaning of the provision.43 When the court examined whether the state of Massachusetts had standing, they assessed whether there had been actual damage. In this case, there had been damage; coastal lands had been affected by sea level rise resulting from climate change. This type of injury is widely shared around the world so it was not clear if it would be specific enough. However, the court said the fact “that these risks are “widely
shared” does not minimize Massachusetts interest in the outcome of this litigation”.44 The damage of the state of Massachusetts had been proved. The EPA was of the opinion that greenhouse gas emissions from new motor vehicles only accounted for an insignificant contribution to the injuries of Massachusetts and so the EPA could not be held accountable for this. The Court, however, did not see it this way. The justification that you cannot be held responsible for a problem because you only contribute to a very small part of the problem is insufficient according to the court. This is especially true in this case, because emissions from American motor vehicles make a large contribution to global warming.45 Reducing domestic emissions will slow down climate change, no matter how many greenhouse gasses are emitted elsewhere. In this case of climate change litigation, the court found that the plaintiff had standing, because there was both an injury and a causal link between this injury and the behavior of the defendant. This case serves as an important precedent for other climate cases but, as we will see, not all cases have been this successful.
43 Massachusetts v. EPA, 127 S.Ct. 1438, U.S., 2007. 44 Idem.
17 The case of Kivalina v. ExxonMobil Co. is a civil law case at national (US) level where a municipality sued 22 energy companies. Kivalina is a village in Alaska that is increasingly threatened by the consequences of global warming and will have to relocate in the near future.46 The ice covering the Kivalina coast is melting and this causes the sea level to rise which in addition makes Kivalina more vulnerable to storms. The energy companies that were sued by Kivalina are some of the biggest emitters of greenhouse gasses. Under the Clean Air Act, Kivalina tried to link these emissions to the injury suffered by Kivalina in order to seek damages for the costs of relocating. However, proving causation turned out to be difficult. The District Court was of the opinion that Kivalina lacked standing, because the “seed” of the injury couldn’t be traced back to any of the companies. In addition, the court found that Kivalina was not in close enough geographical proximity to the places where the greenhouse gas emissions of the companies they sought to hold responsible happened.47 In this case, the plaintiffs failed to prove causation and their claim was not taken into further consideration because they lacked standing. This case shows that the existing doctrines to prove standing cannot always successfully be adapted in cases related to climate change or environmental damage. After this dismissal, the Court of Appeals for the Ninth Circuit agreed with the District Court and denied that the Clean Air Act could be invoked here in order to hold the energy companies responsible for the injuries suffered by Kivalina. The Court of Appeals for the Ninth Circuit made a very interesting addition to this point. The court said: “Our conclusion obviously
does not aid Kivalina, which itself is being displaced by the rising sea. But the solution to Kivalina’s dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law.”48 The court found the question before them too political to answer.
Finding a proper remedy for this problem should not be done in court; instead, it should be done through the legislative and executive branches of the government. Here the political question doctrine hindered the claim for compensation. This seems to be a recurring feature in claims for compensation. So far, this has been the least successful type of claim in climate change litigation.49
A similar point, about climate change being a political question and not a judicial one, has been raised in the case of American Electric Power v. Connecticut. In this civil law case, several states, the city of New York and three NGO’s sued five electric power companies, because they were the largest emitters of carbon dioxide in the United States. The plaintiffs sought to impose a cap on
46 Washington Post, The remote Alaskan village that needs to be relocated due to climate change, available at
http://www.washingtonpost.com/news/energy-environment/wp/2015/02/24/the-remote-alaskan-village-that-needs-to-be-relocated-due-to-climate-change/, retrieved 18 September 2015.
47 Native Village of Kivalina v. ExxonMobil Corp., 663 F.Supp.2d 863 (N.D.Cal. 2009).
48 Native Village of Kivalina v. ExxonMobil Corp., 2012 WL 4215921 (9th Cir.(Cal.)) (21 September 2012) (NO. 09-17490).
49 Kosolapova, E. (2013), Interstate liability for climate change-related damage, The Hague: Eleven International, p. 127.
18 the emissions of the defendants and then to slowly bring down this cap. As in the Massachusetts v.
EPA case, the court had to deal with the EPA as a decision maker on greenhouse gas emissions under
the Clean Air Act. The District Court dismissed the suit. In the opinion of this court, this was a non-justiciable political question.50 However, the Second Circuit Court did not agree and reversed the ruling because this suit should not be barred by the political question doctrine.51 This was seen as a breakthrough and possibly as a precedent for following cases. In earlier cases, such as the Kivalina case discussed above, and also in the California v. General Motors case, courts had held that it would be impossible to decide on such a question without in fact making a policy decision. The Supreme Court however, decided not to explicitly address the political question doctrine, and merely affirmed the Second Circuit’s exercise of jurisdiction.52
In the Australian administrative case Gray v. Minister for Planning, also known as the Anvil
Hill case, individuals challenged the validity of a decision by the New South Wales Director General
of Planning. The NSW Director General of Planning had decided that the Environmental Impact Assessment (EIA) of an open coal mine in NSW was adequate, but this was contested by the plaintiffs. In this important case, planning law was used to achieve environmental justice. The EIA that had been carried out did not contain the estimated impact of the actual burning of the coal, only the impact of the digging up of the coal had been assessed. This was, according to the plaintiffs, not a detailed greenhouse gas assessment, as the rules of the NSW Director General of Planning require. In addition, it failed to take into account the principles of ecologically sustainable development (ESD) that were included in the rules that set out how to carry out an EIA. In this case the court decided that EIAs must indeed take emissions that occur later in the process into account, and EIAs must also take ESD principles into account. One of the relevant principles in this case was the precautionary principle; one should not fail to take action in case of possible great damage to the environment because of scientific uncertainty.53 The reason why the EIAs had to be carried out in this manner was, according to the court, that there was an approximate link between the mining for coal and emissions that would contribute to global warming on a global scale as well as on Australian territory.54
Finally, we will discuss international cases where human rights were invoked. Several of such cases have appeared before the European Court of Human Rights and other human rights tribunals. Especially the cases before the ECtHR are notable, because the European Convention on Human
50 Connecticut v. American Electric Power Co., Inc., 406 F.Supp. 2d 265 (S.D.N.Y. 2005). 51 Connecticut v. American Electric Power Co., Inc., 582 F.3d 309, C.A.2 (N.Y. 2009). 52 American Electric Power Company, Inc. v. Connecticut, 131 S.Ct. 2527, U.S., 2011. 53 Gray v. Minister for Planning and Ors [2006] NSWLEC 720, para 100.
19 Rights does not contain a provision on environmental rights. Instead, plaintiffs invoke article 2 and article 8, claiming that their rights to life or their right to private life and family life have been violated. Such a claim can only be made in cases where the harm has already occurred as a result of a particular act or omission by a state. Plaintiffs in such cases seek reparations for their specific injuries. Human rights can’t be used in cases of prevention or mitigation. Some of the most famous cases before the ECtHR dealing with climate change were Oneryildiz v Turkey, Tatar v Romania and
Budayeva v Russia.55 In these cases it was argued that states had violated the duty of care that follows from their positive obligations under articles 2 and 8 ECHR. It was argued that the states knew of the dangers and of the damage that could occur, but the states had failed to act. Because the states failed to take appropriate measures, damage to the environment had occurred and this was a violation of articles 2 and 8 ECHR. This means that states are under an obligation to actively protect and prevent, also with regards to the environment. This duty to prevent arises even where actions only heighten the risk of violation, regardless of whether actual damage has already occurred or not. In fact, Verheyen and Zengerling conclude that the ECtHR in almost all industrial pollution cases found that article 8 of the ECHR has indeed been violated.56 These cases have created a strong precedent for linking human rights to the environment.
General problems
We have seen some difficulties that can occur in climate change litigation in the cases discussed above. These difficulties have also been acknowledged and discussed in the literature on climate change. What are the main difficulties that have also been recognized in the literature? Overall, in tort cases, it may prove to be very difficult to establish a causal link. This might be the main problem of climate change litigation. There are several difficult aspects to proving a causal link. In the first place there is the question of whether a single polluting facility can be held responsible for global impacts of climate change. Secondly, it turns out to be difficult to assess cumulative and indirect effects of certain acts. In addition, each country has cumulative sum of historical emissions, how should this be taken into account? Fourthly, there is a problem with judicial legitimacy in cases where courts, rather than legislators, are a source of climate regulation and governance. Finally, there are uncertainties in climate and environmental science, and in model projections of future climate change. In most cases, we see several of those issues, as they are all interconnected.
55 Oneryildiz v Turkey App no 48939/99 (ECtHR, 30 November 2004); Tatar v Romania App no 67021/01 (ECtHR, 27 January 2009); Budayeva v Russia App no 15339/02m 21166/02, 11673/02 and 15343/02 (ECtHR, 20 March 2008).
56 Verheyen, R. and Zengerling, C. (2013), ‘International climate change cases’, in: Climate Change: International Law and Global Governance, Baden-Baden: Nomos.
20 The question of whether we can hold individual emitters of greenhouse gas emissions responsible for global impacts of climate change is very challenging. Defendants often rightly claim that their greenhouse gas emissions only contribute for a small part to a global problem. They claim that it would be unfair to hold them responsible. We can call this the ‘drop in the ocean’ problem.57 The ‘drop in the ocean’ argument was used, for example, in the Massachusetts v. EPA case. In this case the defendant argued the following: “EPA nevertheless maintains that its decision not to
regulate greenhouse gas emissions from new motor vehicles contributes so insignificantly to petitioners’ injuries that the agency cannot be haled into federal court to answer for them.”58 The
defendants claimed that their greenhouse gas emissions only contributed to a very small part of the injuries suffered by the claimant, because climate change is a global problem and there are others who contribute to this broader problem. In this case, the court rejected the ‘drop in the ocean’ argument, because American motor vehicles make a disproportionately large contribution to global warming. So the court decided the following: “But EPA overstates its case. Its argument rests on the
erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum.”59 There have not been many cases where the court addressed the
problem of having multiple emitters and the defendant being just one of the many drops in the ocean. However, from the limited cases we have, this argument seems to fail in cases where emissions can be traced back to the defendant.60
By using the ‘drop in the ocean’ argument, it seems the defendant seeks to cast the global scale as the only appropriate scale to assess harm. It could be questioned whether a global scale is always the right scale to address the problem of climate change. As Peel rightly argues in her article ‘issues in climate change litigation’, some environments suffer more than others.61 The result of this ‘drop in the ocean’ problem is that we fail to see climate change as a ‘multiscalar’ problem. A problem that can be seen everywhere and that we can engage with on different levels of governance.62 Osofsky argues that we need “diagonal thinking” as a part of the solution to this problem.63 We can see this solution in the Massachusetts v. EPA case. The court was of the opinion that injuries because of greenhouse gas emissions, and more specifically injuries to coastlines, are
57 See for example Peel, J. (2011), ‘Issues in Climate Change Litigation’, CCLR - Carbon and Climate Law Review 1, 15-24.
58 Massachusetts v. EPA, 127 S.Ct. 1438, U.S., 2007. 59 Idem.
60 Kosolapova, E. (2013), Interstate liability for climate change-related damage, The Hague: Eleven International, p. 126.
61 Peel, J. (2011), ‘Issues in Climate Change Litigation’, CCLR - Carbon and Climate Law Review 1, p. 16. 62 See in general Osofsky, H. (2009), ‘Is climate change “international”? Litigations diagonal regulatory role’, Virginia Journal of International Law, 49:3, 585-650.
63 Hunter, D. & Salzman, J. (2007). ‘Negligence in the Air: The Duty of Care in Climate Change Litigation’, University of Pennsylvania Law Review 155, p. 43.
21 felt everywhere. The court did not see the global scale of the problem as a reason to dismiss the injuries suffered by the state of Massachusetts. Injuries can be suffered at many different levels. Harm on a global level does not dismiss harm at a more local level. This is quite a difference from the case of Kivalina v. ExxonMobil Co. Here, the ‘multiscalar’ issue proved impossible to solve. The District Court concluded that Kivalina was not within sufficient geographical proximity to the places where the defendants emitted their greenhouse gasses. As a result, the causal link between the emissions and the local injuries could not be established.64 Proving that there is a link between greenhouse gas emissions from one particular activity and specific local damages proves to be one of the most difficult issues in climate change litigation.
Another issue when seeking to establish a causal link between injury and emissions is the problem with cumulative effects. This problem can especially be seen in cases that deal with EIAs. The impact that a certain project will have on the environment is usually not measured in relation with the impacts of other projects or impacts that will occur later down the line. This problem could be called the ‘death by a thousand cuts’ problem.65 This problem is related to the question whether you can hold a single polluter responsible for climate change, but the ‘death by a thousand cuts’ problem adds an extra layer to this question. It doesn’t just deny the cumulative effects of different polluters, it also denies the cumulative effects of one single project that occur over time. In the case of Gray v. Minister for Planning, a court successfully dealt with this issue. It was decided that future emissions also need to be taken into account when carrying out an EIA. A failure to take those emissions into account would be a failure to take the precautionary principle into account.66 Just because there are scientific uncertainties over what will happen in the future, doesn’t mean that we can just ignore this; the possible consequences must also be taken into account. This case provided an answer to a part of the ‘death by a thousand cuts’ problem. If future emissions must be taken into account in EIA’s, than the estimated impact of an activity becomes larger. This makes it harder to claim that your contribution is just a small one. This case has mainly had a big impact in Australia, influencing future case law and even political decision making.67
A very different type of problem in climate change litigation is the political question doctrine. This doctrine is related to the separation of powers as envisaged by Montesquieu. According to this doctrine, judicial interference with the executive and legislative branches is best
64 Massachusetts v. EPA, 127 S.Ct. 1438, U.S., 2007.
65 See for example Peel, J. (2011), ‘Issues in Climate Change Litigation’, CCLR - Carbon and Climate Law Review 1, 15-24.
66 Connecticut v. American Electric Power Co., Inc., 406 F.Supp. 2d 265 (S.D.N.Y. 2005).
67 Okubo, N. (2013), ‘Climate Change Litigation: A Global Tendency’, in: Climate Change: International Law and Global Governance, Baden-Baden: Nomos, p. 754.
22 avoided. The executive and legislative branches deal with political issues, this is not the domain of courts. Climate change is often seen as such a political issue where the involvement of courts can’t be justified.68 This problem is very interesting for several reasons. In the first place, there is no overarching regime for environmental law, as opposed to, for example, trade law. For trade law, many rules are agreed on a bilateral basis and in addition, there is the overarching regime of the WTO. For environmental law there is no single international organization that makes the rules and there is not one specific court that can interpret the rules. For this reason, it is natural for domestic courts to get involved. In the second place, national governments are often cautious when addressing climate change. The issue always gives rise to debates since protection of the environment usually has implications for other areas that are also deemed important, such as free trade. Peeters has argued that, in the case of climate change, a court order against the state can also affect the international position of that state. It affects the freedom to negotiate on targets because, according to Peeters, the other states will be less inclined to take action, now that they know someone else is already doing it.69 However, it could also be argued that a higher target will serve as an incentive for other states to take similar measures, because now they know they will not be the only state with more ambitious targets.
American Electric Power v. Connecticut is a great case where we can see how courts deal
with this political question doctrine. The District Court first dismissed this case because it raised a non-justiciable political question.70 This had also been the line of reasoning in previous cases, such as the case of Kivalina v. ExxonMobil Co.71 However, the Second Circuit Court reversed this judgment.72 When the Supreme Court had to deliver a judgment on this case, it became really interesting. The court didn’t address the issue directly. However, there was one paragraph in the opinions of the judges that, according to May in his review of the case in the Yale Law Journal online, makes it seem as if four judges did not see the political question doctrine as an obstacle to review the claim made by the plaintiffs. May also argues that as the other four judges remained silent on this matter, they do not necessarily disagree with this idea.73 In this case, it seems as if the opinion on the political question doctrine is slowly changing. It might be shifting away from being an obstacle to court
68 Mank, B. (2005), ‘Standing and global warming: Is injury to all injury to none?’, Environmental Law 35, p. 29. 69 Peeters, M., ‘Europees klimaatrecht en nationale beleidsruimte’, Nederlands Juristenblad 89, (2014) pp. 2918-2925.
70 Connecticut v. American Electric Power Co., Inc., 406 F.Supp. 2d 265 (S.D.N.Y. 2005). 71 Native Village of Kivalina v. ExxonMobil Corp., 663 F.Supp.2d 863 (N.D.Cal. 2009).
72 Native Village of Kivalina v. ExxonMobil Corp., 2012 WL 4215921 (9th Cir.(Cal.)) (21 September 2012) (NO. 09-17490).
73 May, J. (2011), ‘AEP v. Connecticut and the Future of the Political Question Doctrine’, The Yale Law Journal Online 121, available at http://www.yalelawjournal.org/forum/aep-v-connecticut-and-the-future-of-the-political-question-doctrine, retrieved 30 October 2015, p. 130.
23 rulings in cases of climate change litigation. Of course the cases cited above are national cases and have only national implications, but because there are not many other cases available in the field of climate change litigation, American Electric Power v. Connecticut is still an important case when studying the political question doctrine. However, the political question doctrine is an American concept and it is not exactly the same elsewhere. In the United States, this doctrine can be invoked when a judicial decision isn’t desirable because it wouldn’t respect the other branches of government. The political question doctrine is related to the concept of separation of powers, which does exist in legal systems around the world. We see for example that the separation of powers was frequently mentioned in comments on the Urgenda case.74 Because of this relation between the political question doctrine and the separation of powers, American Electric Power v. Connecticut case could also be an example when studying the latter.
General principles?
It is hard to see general principles in environmental litigation that are widely accepted. First of all because this field of litigation is relatively new and second of all, we rely on different legal regimes to make this type of litigation work, there is not one overarching regime. However, there have been several successful cases; this indicates that climate change litigation can be fruitful. Especially because it seems as if courts are willing to hold emitters responsible, even though their individual contribution to global warming is insignificant. The ‘drop in the ocean’ argument might no longer be a successful defence.
At this point, human rights cases and administrative cases seem most likely to be successful. Invoking the articles 2 and 8 of the ECHR has been successful in several cases. Several cases dealing with human rights and the environment have been brought before other human rights courts.75 There seems to be an emerging support for linking the environment to human rights. The Council of Europe, for example, has published a manual aimed at legal professionals and public authorities to increase their understanding of the relationship between human rights and the environment, especially under the ECHR. The aim of this manual is also to strengthen environmental protection at a national level.76 Of course this type of case can only be brought before courts under very specific
74 See for example Schutgens, R. (2015),‘Urgenda en de trias - Enkele staatsrechtelijke kanttekeningen bij het geruchtmakende klimaatvonnis van de Haagse rechter’, Nederlands Juristenblad 33, 2270-2277.’, Nederlands Juristenblad 33, 2270-2277; Enneking,L., and de Jong, E. (2014), ‘Regulering van onzekere risico’s via public interest litigation?’, Nederlands Juristenblad 23, 1542-1551; Peeters, M. (2014), ‘Europees klimaatrecht en nationale beleidsruimte’, Nederlands Juristenblad 89, 2918-2925.
75 See for example African Commission on Human and Peoples’ Rights (2002), Ogoniland; Inter-American Comission of Human Rights (2004), Maya indigenous community of the Toledo District v. Belize.
24 circumstances. The state must have breached a duty that resulted in environmental harm which violated one of the human rights.
Perhaps a broader category, and also likely to be quite successful in the future, is the category of administrative climate change litigation. Massachusetts v. EPA and Gray v. Minister for
Planning are examples of such cases. Administrative litigation is nothing new. In the cases
mentioned here, it was just applied to situations that would have an impact on the environment. This type of cases has the potential to become more common and successful in the future. Mainly because it doesn’t require a very new and different way of seeing things. Some climate cases contain some rather difficult aspects, such a potential harm or suing in the name of future generations, administrative cases tend to be less complicated.
25
Chapter 4: Urgenda v. The Netherlands: An exceptional case
This final chapter will be an analysis of the Urgenda case. This case of climate change litigation is unique in the world. It is for the first time that an NGO and a group of citizens have successfully held their government liable for their contribution to climate change. There could be many reasons to doubt bringing this case before a court. Wouldn’t it be better to sue a fossil fuel company? After all, they are the real emitters. Would it even be possible to hold the state responsible if the state itself does not emit greenhouse gasses? Roger Cox, the lawyer representing Urgenda, explained in a recent episode of VPRO tegenlicht that the state has a duty to care for its citizens. As a result, he and Urgenda had believed from the start that a case against the government would be their best chance.77 This duty of care exists in legal systems around the world, so the Urgenda case could be an inspiration for similar cases elsewhere. To get a clear view of the significance of the case, the first part of this chapter will intrpduce the case. It will provide the facts of the case by discussing the claims put forward by Urgenda, the defence of the Dutch state, and the considerations of the court on all the issues that were raised. In the second part, the case will be placed in the context of the topics that have been discussed in the previous chapters. Some observations will be made about its significance for climate change litigation.
The facts of the case
On 24 June 2015, the District Court of The Hague ruled in the case of Urgenda Foundation v. The
State of the Netherlands (Ministry of Infrastructure and the Environment) (hereinafter, the Urgenda
case). The Court decided that the Dutch state must do more to bring down greenhouse gas emissions in the Netherlands. In 2020, the emissions must be reduced by at least 25% compared to the emissions in 1990.
The case was brought against the Dutch state by Urgenda and 886 individuals. On 12 November 2012, Urgenda sent the Dutch government a letter underlining the urgency of the problems surrounding climate change.78 In a reply to this letter, the Dutch state recognized the
77 VPRO tegenlicht, episode of 20 September 2015, at 20:25, available at
http://tegenlicht.vpro.nl/afleveringen/2015-2016/de-klimaatzaak.html, retrieved 12 November 2015. 78 Urgenda, Brief aan de staat, 11 November 2012, available at
26 urgency of the problems but did not decide to take additional measures.79 On 20 November 2013, Urgenda and the 886 individuals served a summons on the Dutch state to hold the state responsible for its role in causing climate change. Urgenda asked the court to declare that the Dutch state is acting unlawfully with regards to the Dutch citizens, if it fails to achieve a 25-40% reduction of greenhouse gas emissions in 2020 compared to the 1990 levels. In addition, Urgenda asked the court to order the Dutch state to act in accordance with its obligations under the ECHR and take necessary measures to bring down emissions before 2020, in order to prevent future damage. Article 3:296 of the Dutch Civil code allows to ask for such an order before a court. Urgenda underpinned its claims with scientific insights and the wide acceptance of these insights by states party to the 1992 UN Climate Convention.80 On 2 April 2014, the state reacted, saying that the measures asked for by Urgenda are not legally enforceable.81 There was another exchange of arguments between Urgenda and the Dutch state before the case was discussed before the Hague District Court on 14 April 2015. The Court decided in favor of Urgenda. Before 2020, the Dutch state needs to reduce its emissions with at least 25% as compared to the emissions in 1990.
The case brought by Urgenda is motivated by scientific evidence suggesting that the climate change regime as set out in chapter one, is not sufficient to keep global warming below the crucial line of two degrees. With the commitments that states have made today, it is unlikely that global warming can be kept below two degrees. With the current government pledges, the global average temperature will most likely rise 3,6 degrees above pre industrial levels.82 In the Cancun agreements of 2010, the commitment to keep the rise in average global temperature below two degrees, was explicitly acknowledged. This was based on the advice of the IPCC in their fourth assessment report; a higher rise would pose significant risks to for example biodiversity.83 This is an odd fact in the scientific evidence in the Urgenda case. In its judgement, the court refers to the Cancun agreement and the fourth IPCC assessment report. However, by the time of the judgement, the report was already outdated; the IPCC has published its fifth assessment report in 2013/2014.
79 Ministerie van Infrastructuur en Milieu, Brief aan urgenda, 11 December 2012, available at
http://www.urgenda.nl/documents/BriefReactievandeStaatlp-i-m-0000002872.pdf, retrieved 18 June 2015. 80 Dagvaarding klimaatzaak, 20 November 2013, available at
http://www.urgenda.nl/documents/DagvaardingUrgendaKlimaatzaak19-11-13.pdf, retrieved 18 June 2015. 81 Reactie van de Staat, 2 April 2014, available at
http://gallery.mailchimp.com/91ffff7bfd16e26db7bee63af/files/Conclusie_van_antwoord.pdf, retrieved 25 July 2015.
82 Climate action Tracker, available at http://climateactiontracker.org/, retrieved 6 November 2015. 83 IPCC, (2007), fourth assessment report, available at
