Urgenda v State of the Netherlands: Lessons for international law and climate change litigants
In advance of the final judgement in the landmark Urgenda v. State of the Netherlands climate litigation case, we shine the spotlight on whether human rights can serve as a basis for obliging states to reduce their emissions, and on the justifications behind the minimum 25 per cent emissions cut stipulated by the Hague District Court.
On 13 September 2019 the Dutch Supreme Court was advised to uphold the judgement in the ‘Urgenda’ climate litigation case. This is a landmark case with an exciting history: back in 2013 the Urgenda Foundation, a Dutch organisation for sustainability and innovation, along with 900 Dutch citizens, sued the Dutch government to require it to do more to prevent global climate change. The Hague District Court found in the plaintiffs’ favour in 2015, ordering the Dutch state to reduce its greenhouse gas emissions by at least 25 per cent below 1990 levels by 2020. The Dutch government appealed; now the final judgement is fast approaching, set for 20 December 2019.
The content of the 180-page-plus Advisory Opinion should be of interest to governments and scholars and is likely to prove a valuable resource for other climate litigants around the world. Plaintiffs in these cases are increasingly relying on human rights arguments to bring cases against states and corporations that hold specific responsibilities on this front.
Drawing on climate science, international climate targets, and international law
The Advisory Opinion delves deep into the underlying principles and legal reasoning that constituted the basis of the original 2015 decision, and the subsequent judgement of the Court of Appeal in 2018 which upheld that decision. When the District Court of the Hague ordered the Dutch government to commit to a greater cut in emissions – by a minimum of 25 per cent as opposed to a projected reduction of 14–17 per cent – it was the first court in the world to do so.
The Opinion notes that the obligation of the State to reduce its emissions is “not part of any written national or international law as such”, and that the District Court and the Court of Appeal based the decision on the “open standards” of Dutch tort law and articles 2 and 8 of the European Convention on Human Rights (ECHR) [point 2.1 in the Opinion]. As a means to interpret the open standard of due care, both judgements draw upon insights from climate science, targets in international climate policy, and standards and principles of international law. Particularly important are the remarks dealing with the requirement of causality in cases seeking orders or injunctions [2.10]; the role of international law as an interpretative source for domestic legal provisions [2.26]; and the role of soft law as a source of international law [2.31]. The Opinion also comments at length on the separation of powers [5.1].
Below we highlight two elements of the Advisory Opinion that deserve special attention.
States’ human rights obligations to mitigate climate change
The Advisory Opinion engages closely with existing jurisprudence from the European Court of Human Rights (ECtHR) on States’ positive obligations in cases of environmental disaster and serious environmental harm (such as Oneryildiz, Budayeva and Kolyadenko), as well as risks of harm posed by the acts of third parties (such as Osman). It affirms the Court of Appeal’s conclusion that such jurisprudence is applicable to the obligations of the State to protect its population from long-term risks of harm attributable to climate change.
Drawing on analogous ECtHR jurisprudence, the Opinion states that, in order to enforce a State’s positive obligations to protect its population from climate change, it is not necessary for prospective victims of climate-related harm to be individually identified (citing Di Sarno, Cordella, and Stoicescu), nor to identify “immediate” risks of harm to the general population if there is evidence of “long-term” risks (citing Taskin) [2.54, 2.59/60]. It also determines that the existence of scientific uncertainty does not render a risk of harm irrelevant for the purpose of the State’s positive obligations (citing Tatar) [2.57].
The Opinion acknowledges that the current case law of the ECtHR does not provide a definitive answer to the precise scope of the State’s positive obligations under the ECHR with regard to climate change. However, it considers that in such a situation where the ECtHR has to answer to new questions of law, the ECtHR applies the “common ground” method in which it will take into account the practice of the Contracting States, as well as international treaties and “soft law” sources. This also means that in the event that no definitive answer can be found in the existing case law of the ECtHR, a national court should not refrain from providing an opinion on the matter [2.70–2.73].
After analysing several of these sources in both international law and human rights law, the Opinion comes to the conclusion that there is “common ground” for the finding that, under Articles 2 and 8 of the ECHR: Contracting States are obliged by virtue of human rights to seriously reduce greenhouse gas emissions from their territory: a far-reaching best-efforts obligation [2.84].
The 25 per cent emission reduction target as a minimum standard
Another element of the Opinion that deserves analysis is its conclusion that the Court of Appeal was right in determining that, in line with its obligations under the ECHR, the state must reduce its emissions by a minimum of 25 per cent on 1990 levels by 2020. The Advisory Opinion, similarly to the Court of Appeal, bases this recommendation on the finding of the Intergovernmental Panel on Climate Change (IPCC) in its Fourth Assessment Report: the IPCC concluded that in order for the world to limit warming to under 2°C (above pre-industrial temperatures), industrialised and emerging economies need to reduce their emissions by 25–40 per cent by 2020 compared with 1990 (the ‘IPCC range’). This finding has been confirmed by several decisions taken at the annual UN climate conferences (COPs) that followed the IPCC’s report.
In the Urgenda case, on the appeal before the Supreme Court, the State of the Netherlands objected to the use of the IPCC range as a legally binding rule. The State also rejected that the frequent recognitions of the necessity of achieving this range should be interpreted as legally binding. In addition, the State argued that the minimum level of emissions reduction that is required of a country in order to meet the below-2°C target is an inherently normative, not scientific, question that can only be answered by politics.
In discussing these objections, the Opinion acknowledges that natural sciences are not able to determine the necessary reduction level of particular countries; rather, this is a matter of distributing global efforts [4.126]. However, it then notes that the IPCC also assesses scientific insights on what can constitute a “fair” and “equitable” distribution of this global effort, which finds its basis in the principle of common but differentiated responsibilities, as laid down in the UNFCCC [4.129, 2.75–2.76].
The Opinion acknowledges that such principles do not offer any “cut-and-dried answers” to the question of the division of reduction efforts, and, further, that the practical implementation of these principles would require the making of choices which could impact the outcome [4.130, 4.137]. Nevertheless, it also notes that the IPCC range was derived from the latest available scientific studies, covering a broad spectrum of parameters and assumptions [4.131], and furthermore that the “reasoned proposal” of the IPCC gained further significance from its recognition in virtually all COP decisions that took place between the publication of the IPCC’s Fourth and Fifth Assessment synthesis reports.
Although, the Opinion acknowledges, these factors did not render the IPCC range legally binding [4.98–4.99], the Opinion considers that the Court of Appeal was right in attaching significance to both elements in specifying the State’s duty of care [4.137].
Following the judgment of the District Court in 2015, scholars have argued that the decision gave new importance to the principle of common but differentiated responsibility. The Opinion highlights that this principle could very well stand at the centre of discussions in domestic courts.
Significance of the Urgenda case and forthcoming ruling
Climate change litigation continues to expand across jurisdictions as a tool to strengthen climate action and climate change cases have been identified in at least 28 countries. On the 20 December 2019 many eyes will be on the Dutch Supreme Court as it provides the final ruling in the Urgenda case. The ramifications of the Supreme Court’s decision are likely to be felt far and wide. Regardless of the final outcome, the decisions of the Dutch courts in the Urgenda case have already inspired similar litigation around the world, including in recent proceedings in Ireland and Germany.
Dr Joana Setzer leads the Grantham Research Institute’s research on climate litigation. Dennis van Berkel is the legal counsel to the Urgenda Foundation. The authors would like to thank Lucy Maxwell for her contribution to this commentary.
Details of the Urgenda case and others are provided in the Grantham Research Institute’s free online database, relaunched with greater coverage and functionality in December 2019: www.climate-laws.org