The Urgenda judgment and its potential implications

Clyde & Co is part of a vast ecosystem of experts and thinkers working on the problem of climate change risk and the opportunities that come with adaptation and resilience. This is part of our guest post series, featuring:

Professor Jaap Spier

About Professor Spier
Professor SpierProfessor Spier is a Senior Associate at the University of Cambridge Institute for Sustainability Leadership (CISL). Between September 1997-September 2016, he served as Advocate-General in the Supreme Court of the Netherlands (equivalent to Supreme Court Justice). He held an honorary chair at Maastricht University (1999-2016; currently emeritus). Since his retirement, he has held an honorary chair at the University of Amsterdam (from September 2016) and an extraordinary chair at University of Stellenbosch (from 1 July 2016). Jaap is senior fellow Global Justice Program, Yale University.

Jaap is founder and honorary President of the European Group on Tort Law and cofounder (with Prof. Thomas Pogge, Yale University) of an expert group working on climate change principles (this group launched the Oslo Principles; he served as rapporteur), and co-founder of the Expert group on Principles on Climate Obligations of Enterprises (reporter and author of the commentary). He is fellow of European Institute for Tort and Insurance Law (ECTIL), Vienna.

Jaap is (co-) author or editor of 29 books and hundreds of articles and case notes on tort law and legal aspects of climate change.

He writes here about the Urgenda judgment and its potential implications.

The Urgenda case is about whether the Dutch State is obliged to reduce, by the end of 2020, its GHG emissions by at least 25% compared to 1990.

In 2015 the District Court ordered the State to reduce its emissions by the end of 2020 by at least 25% compared to 1990. In 2018 the Court of Appeal confirmed this judgment. The Supreme Court (hereinafter: the SC) rejects the State's appeal.

The SC observes that it is not disputed that climate change creates a genuine threat in the coming decades. The SC elaborates on that point, emphasising that according to more recent insights global warming should not go beyond 1.5°C.

Turning to the protection of human rights, based on the ECHR, the SC notes that the Convention requires the States, parties to the convention, to protect the rights established therein for their inhabitants. Article 2 ECHR protects the right to life; Article 8 ECHR the right to respect for private and family life. According to the case law of the European Court of Human Rights (ECtHR), these provisions oblige a contracting State to take suitable measures if a real and immediate risk to people's lives or welfare exists and the State is aware of that risk.

The obligation to take suitable measures also applies to environmental hazards that threaten large groups or the population as a whole, even if the hazards will only materialise over the long term. While Articles 2 and 8 ECHR are not permitted to result in an impossible or disproportionate burden being imposed on a State, they do oblige the State to take measures that are actually suitable to avert the imminent hazard as much as reasonably possible. Pursuant to Article 13 ECHR, national law must offer an effective legal remedy against a violation or imminent violation of the rights protected by the ECHR.

Each country is responsible for its own share of GHG emissions. Hence, it cannot escape responsibility by arguing that, compared to the rest of the world, its own emissions are relatively limited in scope and that a reduction would have very little impact on a global scale. The State is obliged to reduce its GHG emissions in proportion to its share. This obligation is based on Articles 2 and 8 ECHR, because there is a grave risk that dangerous climate change will occur, endangering the lives and welfare of many people in the Netherlands.

When giving substance to the positive obligations imposed on the State pursuant to Articles 2 and 8 ECHR, broadly supported scientific insights and internationally accepted standards must be taken into account. Important in this respect are, inter alia, the IPCC reports. The IPCC's 2007 report contains a scenario in which global warming could reasonably be expected to be limited to a maximum of 2°C. To that effect the (Kyoto Protocol) Annex I countries would have to reduce their emissions in 2020 by 25-40%, and in 2050 by 80-95%, compared to 1990. At the annual climate conferences held in the context of the UNFCCC since 2007, virtually every country has regularly pointed out the necessity of acting in accordance with the scenario of the IPCC and achieving a 25-40% reduction of GHG gas emissions in 2020. The scientifically supported necessity of reducing emissions by 30% in 2020, compared to 1990, has been expressed on multiple occasions by and in the EU.

Since 2007, a broadly supported insight has arisen that, to be safe, global warming must remain limited to 1.5°C, rather than 2°C. The Paris Agreement of 2015 therefore expressly states that the States must strive to limit warming to 1.5°C. That will require an even greater emissions reduction than was previously assumed. Hence, there is a great degree of consensus on the urgent necessity for the Annex I countries to reduce GHG emissions by at least 25-40% in 2020. This consensus must be taken into consideration when interpreting and applying Articles 2 and 8 ECHR.

Until 2011, the State's policy was aimed at achieving a reduction in 2020 of 30% compared to 1990. According to the State, that was necessary to stay on a credible pathway to keep the 2°C target within reach. After 2011, however, the State's reduction target for 2020 was lowered from a 30% reduction by the Netherlands to a 20% reduction in an EU context. The State has not explained that – and why – a reduction of just 20% in 2020 is considered responsible in an EU context, in contrast to the 25-40% reduction in 2020, which is internationally broadly supported and is considered necessary.

There is a broad consensus within climate science and the international community that the longer reduction measures to achieve the envisaged final target are postponed, the more comprehensive and more expensive they will become. Postponement also creates a greater risk of an abrupt climate change occurring as the result of a tipping point being reached. In light of that generally endorsed insight, it was up to the State to explain that the proposed acceleration of the reduction after 2020 would be feasible and sufficiently effective to meet the targets for 2030 and 2050, and thus to keep the 2°C target and the 1.5°C target within reach. The State failed to do so.

The State has asserted that it is not for the courts to undertake the political considerations necessary for a decision on the reduction of GHG emissions. In the Dutch system of government, the decision-making on GHG emissions belongs to the government and parliament. They have a large degree of discretion to make the political considerations necessary in this regard. It is up to the courts to decide whether the government and parliament have remained within the limits of the law. Those limits ensue inter alia from the ECHR. The Dutch Constitution requires Dutch courts to apply the ECHR provisions in accordance with the ECtHR's interpretation of these provisions. This mandate to the courts to offer legal protection, even against the government, is an essential component of a democratic state under the rule of law.

The Court of Appeal's judgment is consistent with the foregoing, as it held that the State's policy regarding GHG reduction is obviously not meeting the requirements pursuant to Articles 2 and 8 ECHR to take suitable measures to protect the residents of the Netherlands from dangerous climate change. Furthermore, the order which the Court of Appeal issued was limited to the lower limit (25%) of the internationally endorsed minimum reduction of 25-40% in 2020. This order leaves it up to the State to determine which specific measures it will take to comply with that order. If legislative measures are required to achieve such compliance, it is up to the State to determine which specific legislation is desirable and necessary.

Wider implications?

The judgment entails three important messages:

1) (some) courts are willing to assume a role in the fight against climate change;
2) at least in an European context, human rights can be called to aid;
3) pledges to take specific measures are important, but may come at a price.

The Dutch SC is not the first court prepared to enter the stage concerning climate change scene in an active – some will argue: activist – way. An advisory opinion of the Inter-American Court of Human Rights and the ground-breaking judgment Gloucester Resources v. the Minister of Planning ([2019] NSWLEC7) may serve as examples. The recent Juliana judgment on appeal, illustrates that other courts may be much more reluctant. See for more details Joana Setzer and Rebecca Byrnes, Global trends in climate litigation: 2019 snapshot. It seems a safe bet that courts will become increasingly willing to step in if ever more catastrophic natural events occur.

The notion that human rights can play an important role in the legal debate about climate change is swiftly gaining ground. See f.i. a decision of 7 January 2020 of the UN Human Rights Committee (in the context of a climate change refugee deported by New Zealand to Kiribati; the claim was dismissed), John Knox, Climate Change and Human Rights Law: Where We Are Now, Brian J. Preston, The Evolving Role of Environmental Rights in Climate Change Litigation, and the Commentary to the Principles on Climate Obligations of enterprises (EP). Strikingly, at the COP in Madrid Commissioner Cadiz of the Philippines’ Commission on Human Rights announced the Commission’s conclusion in a case initiated by Greenpeace South East Asia that legal responsibility for climate change is not covered by current international human rights law. In the context of liability of major fossil fuel corporations he contends that it is up to the respective countries to “pass strong legislation and establish liability in their courts”. I expect that the view that human rights do not play a role concerning climate change is a rear-guard action. I share, however, commissioner Cadiz’ (the Commission’s) view that carbon majors (and, I should add, other enterprises) “definitely have an obligation to respect human rights as enunciated under the United Nations Guiding Principles on Business and Human Rights”. The Commission could also have referred to the OECD Guidelines for Multinational Enterprises and the Global Compact.

Many corporations, captains of industry, investors, and institutions such as Global Compact do not cease to emphasise the urgent need to take bold action. Enterprises increasingly and laudably issue pledges to reduce their emissions significantly, or even to effectuate zero emissions by 2050. Climate change science strongly supports the view that global emissions must be reduced significantly and at great pace. The IPCC reports of 2018 and 2019 leave no room for doubt: a hell of a lot must be done right now. It can only be hoped that courts are willing to adopt a similar approach concerning emissions of the corporate world as the SC did in the Urgenda case. That would mean: non-compliance with self-imposed (or strongly advocated) reduction obligations can be risk-laden. Honouring “voluntary” pledges, which courts ex post facto hold to be in line with the enterprises’ minimum obligations, may shield against liability. In addition, these enterprises run less of a risk to become a target for litigation.

For the avoidance of doubt: I am not saying: enterprises are better off without pledges. The tide is turning and those who take a sit-and-wait position expose themselves and their boards to claims for damages. Michael Kirby, a retired justice in the High Court of Australia, hit the mark: “It would be unwise to wait for a future Royal Commission or litigation to unveil the neglect, indifference and carelessness of those in responsible positions of decision-making who are sleepwalking in a blindfold while potentially important problems are looming” (2019) 36 EPJL 181 at 196.

The most challenging, though not overly surprising, message of the SC’s judgement is the rejection of the State’s argument that it is close to impossible to achieve the reductions required by the court by the end of this year. The SC emphasises that the obligation was known; the court of first instance issued injunctive relief to curb GHG emissions by at least 25% by the end of 2020 in June 2015, which created an immediate obligation.

Enterprises would be best advised to reckon with similar judgements if they clearly fell short of reducing their emissions to at least the minimum required in future judgments. It goes beyond the scope of this contribution to go into much detail on the meaning of “minimum”. It will be determined by, inter alia, the prevailing scientific and political view about the minimum reductions the world
has (had) to achieve, the pledges by the industry and the defendant, and, if available, credible submissions how the reductions globally required have to be distributed among enterprises (the EP offer a blueprint), I think.

If future courts would rule that enterprises had to achieve higher reductions in the past than those actually achieved – a not overly unrealistic assumption – the enterprises in point may have to add the reductions they fell short to achieve to the new reductions to be achieved anyway after the judgment. That will often be quite a challenge.

My summary is an abridged and slightly amended version of the unofficial translation of the judgment (Hoge Raad 20 December 2019, ECLI:NL:HR:2019:2007 under Summary).

For more information or contact, please E-mail: