Rumbling in Robes Round 2 – Civil Court Orders Dutch State to Accelerate Climate Change Mitigation

By Kai P Purnhagen, Josephine van Zeben, Hanna Schebesta, and Robbert Biesbroek

On 9 October 2018, the Civil Division of the The Hague Court of Appeal in the Netherlands has delivered its judgment on the appeal of the ‘Urgenda case’ The Court imposed an order to act on the Dutch government to adjust its policy from 20% to achieve a 25% emission reduction by 2020, compared to 1990 levels (paras 51 and 75). The judgment confirmed the initial ruling in favour of Urgenda in 2015.[i] The consequences for Dutch climate, energy and environmental policy and potentially for climate mitigation efforts worldwide are potentially far-reaching, regardless of possible further appeals by the Dutch government. This ruling raises important questions with respect to the interpretation of Dutch and European Union law, their interrelationship, and possible transferability to other national jurisdictions. In this Commentary, we discuss these issues in turn, starting with a brief synthesis of the judgment.

Summary of the Judgment

The judgment concerned the question whether Dutch law requires the Dutch State to design its climate policy in a way that conforms to international obligations and climate science. Whether such an obligation exists depends on the definition of the State’s “duty of care”. In 2015, The Court in the first instance stated that, when interpreting the State’s duty of care under Dutch tort law, the government’s international obligations need to be taken into account.[ii] These include the ‘no harm’ principle of international law and measures taken with the European Union. In this judgment, the Court stipulated that such a “duty of care” can also result directly from Articles 2 and 8 of the European Convention of Human Rights (ECHR), rather than from the interpretation of the civil law provisions. Articles 2 and 8 ECHR respectively protect the right to life and the right to private life, family life, home and correspondence. These articles cover environment-related situations and place both positive and negative obligations on governments to protect parties’ interests.

In determining the State’s emission reduction targets, the Court further relied on information provided by inter alia the IPCC and other scientific reports, the international consensus reflected in the outcome of the UNFCCC COPs, and national policy documents. All these documents, according to the Court, confirm ‘the fact that at least a 25-40% reduction of CO2 emissions as of 2020 is required to prevent dangerous climate change’ (para 51). Though not legally binding in themselves, the combined reading of these documents resulted in the Courts decision to set this as the State’s duty of care (see inter alia paras 45, 73-74).

 

Assessment

In our assessment of this case, we focus on three aspects relevant for future climate change litigation cases: 1) the use of climate science as a legal argument in the case; 2) the case’s impact on EU law, and 3) the transferability of the case to other jurisdictions.

1) The Use of Climate Science

Interestingly, the climate facts relevant to the case were not contested between the parties. This allowed the Court to use the climate science submitted and agreed between the two parties in their pleadings, in three ways: First, to define the legal limits of the State’s ‘wide margin of appreciation’ under Articles 2 and 8 ECHR in choosing its measures to prevent climate change. This means the Court concludes that based on references to evidence submitted to the court that ‘it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’ (para 45). However, the Court’s legal basis for the inclusion of climate science is unclear. Some of the Court’s reasoning (para 43) suggests that the precautionary principle could act as a legal basis here, a principle that is also part of the ECHR’s jurisprudence in Tătar v. Romania. But this would require the State to take effective and proportionate measures, which is not the standard applied by the Dutch Court (para 42).

Second, the Court uses climate science to define the legal limits of the government’s possibility to determine their emission reduction policy. The Court states that ‘the State failed to give reasons why a reduction of only 20% by 2020 (…) should currently be regarded as credible’ (para 52). Such reasons could have been substantiated ‘based on climate science’. Put differently, the Court limits the Dutch’s government’s political discretion in determining its climate policy by subjecting it to a credibility test, which requires the State to justify its policy at the hand of climate science. Also here, the Court fails to outline any legal basis for this claim, including any reference to the Paris Agreement.

Third, and finally, the Court uses climate science to determine whether an order based on Dutch law to 25% reduction by 2020 would violate EU climate law and policy. It stipulates that ‘the EU deems a greater reduction in 2020 necessary from a climate science point of view’ (para 72). Hence, the agreed upon EU-wide reduction target of 20% by 2020 could not be used as a defence by the Dutch State (Effort Sharing Decision 406/2009/EC). This reasoning leads the Dutch Court to overrule a binding political consensus reached at EU level based on climate science, again without references to any legal basis. One could claim that under the EU principles of precautionary or preventive action, new scientific evidence such as the IPCC’s recent Special Report on 1.5 degrees can cause EU legal obligations to be re-evaluated. However, such a re-evaluation would be subject to the exclusive jurisdiction of the Court of Justice of the EU (CJEU).

In sum, the careless legal reasoning regarding the applicable legal basis for the inclusion of arguments from climate science weaken the generally welcomed approach towards more scientification of legal reasoning in climate law suits.

2) EU Dimension

The Dutch ruling raises several questions, all of which relate directly to the validity of EU law. The legal chain of consequences goes as follows: the Dutch reduction goals are based on the EU’s Effort Sharing Decision and the EU ETS Directive; these goals are considered to be insufficient to discharge the standard of care of the Dutch government under Articles 2 and 8 ECHR; this implies that the Decision and Directive themselves leave the European institutions in violation of fundamental rights of the ECHR, assuming that a violation of the ECHR creates a basis of invalidity of the EU acts.[iii] The Courts’ interpretations of the relevant climate science, specifically its use of this science in establishing a standard of care, relates directly to the principles of precaution and prevention. These two principles are binding on the European legislature in the area of EU environmental policy.[iv] Clear violation or contravention of these principles would be another basis for invalidity.

Moreover, environmental policy is an area of shared competence between the EU and its Member States, where action taken by the EU pre-empts further regulation by the Member States.[v] Within this area, the Treaties earmark climate change as one of the objectives that the EU should pursue.[vi] This combination of competence and objectives means that the Member States’ obligations under the UNFCCC and any related Protocols and Agreements, such as the Kyoto Protocol and Paris Agreement, tend to be redistributed within the EU and translated into EU legislation. This means that these obligations are not only binding under international law, but that their restatement also results in binding commitments under EU law. This is considered an important strength of the EU Member States’ international commitments: EU law is far more enforceable than international law, leading to the expectation of a higher level of compliance by EU member states.

The emission reduction targets scrutinized by the Dutch courts are the direct result of EU legislation, which redistribute the Member States’ international obligations. They can be traced back to the EU Effort Sharing Decision, which also serves as the basis for the reduction targets of the EU ETS. As the Court rightly states, Member States are empowered to take more ambitious environmental measures in areas where the EU has legislated. Therefore, in theory, the Netherlands could have maintained its 25% reduction target instead of adhering to the EU’s 20% target.[vii] However, these measures need to be notified to the Commission and cannot create barriers to the internal market.[viii] There is a clear risk that national laws aiming at more stringent emission reductions would impact on the EU’s internal market, for instance through raising vehicle emission standards. Moreover, there would be a tangible effect on the EU ETS, even if not in the ways that the Dutch State argued (para 54-55).

 

However, the State’s objections based on its obligations towards the EU, and the EU’s Emissions Trading Scheme (EU ETS), were given short shrift (para 54-58). In fact, the Dutch Court does not address any of these questions of EU law, which may be explained by the fact that the CJEU has exclusive jurisdiction over matters of validity of EU law and a preliminary reference to the CJEU would therefore have become necessary. Not engaging with these questions misrepresents the relative division of political and legal power between the EU and the Member States on this issue. It fails to acknowledge that meaningful change to the Dutch, and EU goals, necessitates a EU level challenge.

 

3) Transferability

The potential effect of the Urgenda judgment on climate change will not depend on its ability to increase Dutch emission reduction targets to 25% by 2020 compared to 1990; the Dutch emissions are simply not impactful enough to make a meaningful difference globally. Instead, environmentalists hope that Urgenda will pave the way for similar judgments across the world, forcing governments into ambitious climate change mitigation policies and tangible actions. The Court’s focus on the ECHR and the EU Treaties, and its omission of the Paris Agreement as explicit legal basis, limits the application of the case beyond a small group of countries for now.

There are at least three issues that limit the transferability of the Urgenda case: first, under Dutch law, the criteria that determine the right to bring a claim to court make it possible for many types of actors to bring a case. For example, whereas most countries, including Turkey, United Kingdom, and Germany, do not allow ‘public interest actions’ to claim rights under the ECHR, the Dutch court now clarified that under Dutch procedural law this is possible (para 36). Standing has been an important barrier for climate cases and this will continue to be true, unless there are changes to national rules of procedure across the world.

Second, the reliance of the Court on the ECHR would seem like a hopeful sign with respect to cases against other signatories to the ECHR. However, the Dutch Court’s interpretation of the duty of care and margin of appreciation of the Dutch government under Articles 2 and 8, particularly its reliance on climate science, does not bind other ECHR parties. In fact, many countries, like the United Kingdom and Germany, do not even consider the judgments of the European Court of Human Rights binding, only advisory. The use of the ECHR by the Dutch Court is therefore persuasive at most. Similarly, the confirmation of the possibility to impose a duty of care, even if stemming from the ECHR, on the government under tort law is not something that is possible in every jurisdiction. The United States’ government, for example, is explicitly shielded from tort claims.

Third, notwithstanding the Court’s decision, the legal and political reality is that the Netherlands is an EU Member State, which determines its climate policy. In order for any actions taken by the Dutch government as a result of the ruling not to violate EU law, they cannot create unjustified barriers to the EU’s internal market. The European institutions, including if necessary the Court of Justice of the EU, are the relevant institutions to decide this, not the Dutch courts. Moreover, the Dutch judgment calls into question the legitimacy of the EU’s climate aims – 20% by 2020 compared to 1990, and 16% specifically for the Netherlands – in light of the climate science used by the Court (see section 1 above). As mentioned, the validity of EU law can only be assessed by the CJEU, which suggests a strong case could be made for a preliminary reference by the Dutch courts to the CJEU. If the deciding court is the Dutch court of last instance, such as the Hoge Raad which decides on the appeal of the current judgment, a strong case could be made for rendering an obligation to submit a preliminary reference to the CJEU. Such a ruling by the CJEU would also greatly widen the impact of the Urgenda litigation as it would extend its effect to all the EU Member States. It remains to be seen whether this will happen in case of a possible appeal.

Regardless of the climate science, international and national goals – not to mention, our actions to achieve these goals – continue to fall short of what is needed. Using every legal avenue – including private law, human rights, and the courts – to fight climate change is a logical and necessary strategy. The challenges this poses for the relationship between the state and the judiciary, the limits of legal doctrine, and the role of climate science in our application of the law, must be faced head-on.

[i] Schebesta, Purnhagen, Dutch government appeals climate law, Nature 526, 506; Josephine van Zeben (2015), “Establishing a Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide?” Transnational Environmental Law, 4, 339-357.

[ii] Marc Loth, “Too big to trail? Lessons from the Urgenda case” Uniform Law Review, Volume 23, Issue 2, 1 June 2018, Pages 336–353; Eleanor Stein & Alex Geert Castermans, “Urgenda v. the State of the Netherlands: The Reflex Effect – Climate Change, Human Rights, and the Expanding Definitions of the Duty of Care”, 13 McGill J. Sust. Dev. L. 303 (2017).

[iii] Since the EU is not a signatory of the ECHR, this violation would not directly undermine the validity of relevant EU law. However, as the interpretation of the EU’s Charter rights are fairly close to that of the ECHR, one could envisage a similar action brought against the EU’s climate goals under Articles 2 and 7 of the Charter for Fundamental Rights (Right to life and Right to private and family life, respectively).

[iv] Article 191(2) TFEU.

[v] See Article 5 TEU, Article 4(2)(e) TFEU and Articles 191-193 TFEU.

[vi] Article 191(1) TFEU, even if the powers of the Member States to enter into international environmental treaties themselves are not, and arguably cannot, be affected.

[vii] Article 193 TFEU.

[viii] E.g. Article 114(5) TFEU.

2 comments

  1. Pingback: ‘Rumbling In Robes Round 2 – Civil Court Orders Dutch State To Accelerate Climate Change Mitigation’ | Private Law Theory - Obligations, property, legal theory
  2. Laura Burgers

    Many thanks to the authors for writing about this interesting case.

    In the first section of their blogpost, the authors stress three times that the legal basis of the judgment is ‘unclear’, and they accuse the Court of Appeal of The Hague of ‘careless legal reasoning’. To my mind, this is unjustified, for the following reasons.

    Firstly, the inclusion of climate science. The legal basis for this is Article 149 of the Dutch Law of Civil Procedure (‘Wetboek Burgerlijke Rechtvordering’): this rule dictates, as the authors say, that courts deem as true those facts that were posed to them and were not (convincingly) disputed. The environmental association Urgenda invoked climate science to sketch a fact pattern pointing to a real threat of dangerous climate change – science the Dutch government did not dispute but acknowledge, and therefore science deemed a true fact by the Court.

    As for the ‘credibility test’ regarding the percentage the Dutch government aims to reduce GHG emissions: the same rule, Article 149, provides the legal basis, together with Article 150 of the same law, which dictates that the party who introduces a fact carries the burden of proof. My co-author Tim and I explain this in more detail in our case note to the judgment, to be published next spring in the Netherlands Yearbook of International Law but already available on SSRN. In short: over 10 years, the Dutch government signed international declarations saying that developed nations (like the Netherlands) should reduce between 25-40% to keep global warming below the dangerous threshold of 2 degrees Celsius in the 21st century. Therefore, Urgenda suggested 25% would be the minimum. The Dutch government itself said in 2009 that 25-40% reduction would be necessary for a ‘credible’ trajectory. The Court is not introducing a credibility test, but merely reiterating that word ‘credible’ to stress the government itself apparently found 25% the minimum – it has not convincingly disputed the fact that 25% would be the minimum. No further legal basis is needed, as this is a matter of establishing facts according to the rules of Dutch civil procedure.

    Thirdly, the ‘overruling’ of the Dutch court of the ‘binding political consensus reached at EU level’. Others have written about this before, more elaborately and eloquently than I am able to. Shortly: it seems highly counterintuitive to interpret EU measures to prevent climate change (an EU wide reduction goal of 20% for certain sectors) as pre-empting further measures to reach the same goal, preventing dangerous climate change. Pre-emption would rather be expected when Member States take measures that would make 20% reduction impossible, allowing more emissions so that for example only 15% reduction could be reached. The Hague Court of Appeal is not concerned with the legality of EU policy on climate change, as is for instance the ‘People’s Climate Case’ launched last summer before the Court of Justice of the European Union. The Court of Appeal is concerned with a Dutch obligation to prevent climate change. The Court is explicit about the legal basis for this obligation, being the direct application of Articles 2 and 8 of the European Convention on Human Rights that find their way to a governmental tort procedure through Article 6:162 of the Dutch Civil Code.

    ***
    *Case note of Tim Staal and myself: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3314008
    *People’s Climate case: https://peoplesclimatecase.caneurope.org/
    *Paper on compatibility of Urgenda case with EU law: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3064346

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