This is part of our guest post series, this edition features:
The Urgenda decision cannot be understood without a proper appreciation of the facts. The facts are alarming. Since the industrial revolution the emission of greenhouse gases, in particular carbon dioxide, has led to a direct, linear 1.1 degree Celsius increase of temperature. The temperature rise we experience today is a result of the carbon dioxide emissions of thirty, forty years ago: the climate is slow to respond to the emission of greenhouse gases.
Were we able to stop all emissions today, we would still be faced with an increase of temperature during the following thirty to forty years. The cause of this cannot be solved easily. Carbon dioxide remains for hundreds of years or more in the atmosphere and is partly absorbed by the ecosystems in forest and oceans. This absorption capacity is dropping continuously due to deforestation and the warming of the seawater.
Since 1988, the International Panel on Climate Change (IPCC) is studying all aspects of climate change through studies and assessments of the most recent scientific and technological information that becomes available around the world. The IPCC is not just a scientific organisation, but an intergovernmental organisation as well. It has 195 member, including the Netherlands. In 1992, the United Nations Framework Convention of Climate Change (UN Climate Convention) was ratified. The purpose of this convention is to prevent dangerous human interference with the climate system. The highest decision making body within the Climate Convention is the Conference of Parties (COP). The COP meets annually at climate conferences. Resolutions passed by the COP are generally not legally binding.
There has long been a consensus in climate science and in the international community that the average temperature on earth may not rise by more than 2 degree Celsius compared to the average temperature in the pre-industrial era. In quantum, this means the concentration of greenhouse gases in the atmosphere cannot rise above 450 parts per million (ppm) by the year 2100. Between a temperature rise of 1 to 2 degree Celsius, the risk of reaching tipping points which may result in abrupt climate change for which neither mankind nor nature can properly prepare, increases 'at a steeping rate'. In recent years, new insights have shown that the temperature can only safely rise by no more than 1.5 degree Celsius, which translates into a concentration level of no more than 430 ppm in the year 2100.
The Bali Action Plan
At present, of the 450 ppm or 430 ppm, 401 ppm has been used. In 2007, the COP adopted the Bali Action Plan. Citing the Fourth Assessment Report (AR4), the Bali Action Plan acknowledges the need for drastic emissions reductions. To that end, the so-called Annex I countries (Western world), having promised to take the lead in counteracting climate change and its negative consequence under the Climate Convention, promised to reduce their emissions of greenhouse gases by 2020 by 25%-40% compared to 1990. The need to such reduction was repeated in the annual COP meetings afterwards. In 2010, the EU in the 'Cancun pledges' acknowledged the reduction of 30% per 2020, and promised to realise at least a reduction of 20% or 30% if other countries were to undertake the achievement of similar reduction targets. This condition has not met. At present, the EU is likely to realise a reduction this year of 26%-27% compared to 1990.
Between 2007 and 2011, the Netherlands was working from the premise of a 30% reduction target in 2020 compared to 1990. The Dutch government considered a 30% reduction - I quote - 'necessary to stay on a credible track to keep the two degree target within reach'. After 2011, a new government adjusted the Dutch reduction target to the EU-level of 20% in 2020 compared to 1990. Later on, in 2017, the government announced it would strive to achieve higher reductions at a later stage: 49% in 2030. The Netherlands still have a relatively high emission per capita, compared to other industrialised countries. While the EU as a whole is likely to realise a reduction of 26%-27%, this year. The Netherlands is likely to realise a reduction of 23%, possibly even considerably lower (19% or even lower).
The Supreme Court Intervention
Following this surprising change in government policy in 2011, Urgenda started legal proceedings against the Dutch State. It claimed the State should limit the volume of greenhouse gas emissions in the Netherlands by 40% at the end of the year 2020, or at least by a minimum of 25%, compared to 1990. Urgenda is a NGO foundation under Dutch law, with the object to stimulate and accelerate transition processes towards a more sustainable society, starting in the Netherlands. To substantiate its claim, Urgenda referred to the State's 'systemic responsibility' and the urgent need for action (referred to as the 'carbon crunch', and the global potential of 'tipping cascades'). The Dutch State asserted various defences. In short, it denied that the target of 25%-40% is legally binding. Granting the requested reduction order would essentially come down to an impermissible order to create legislation and would contravene the political freedom accruing to the government and parliament and, thus, the system of separation of powers.
In 2015, to the surprise of many, the District Court ordered the State to limit the combined volume of Dutch annual greenhouse emissions by at least 25% at the end of 2020, compared to 1990. The District Court agreed with the State that the target of 25% is not legally binding. However, according to the District Court, the Dutch State violates its duty of care to prevent dangerous climate change by postponing the mitigation as initially advocated by the Dutch State itself. Such postponement increases the risk of dangerous climate change. The State failed to provide any argument to justify the postponement. The Dutch State appealed the decision. In 2018, the Court of Appeal confirmed the District Court's judgment. The Court of Appeal did no rely on the State's civil law duty of care, but on articles 2 and 8 of the European Convention of Human Rights (ECHR). It referred to the State's positive obligation in case of a 'real and immediate risk'. Like the District Court, the various State defences, such as the possibility of taking adaptive measure in the future instead of mitigation measures now, did not impress the Court of Appeal. The Court of Appeal emphasized the need for effective legal protection for a global problem as complex as climate change under the ECHR. Again, the Dutch State accepted neither the outcome nor its reasoning and appealed the Court of Appeal's decision to the Supreme Court.
Having summarised the facts and the legal proceedings in the lower courts, the Supreme Court starts with setting out the ECHR framework. Article 1 of the ECHR provides that the Member States must secure to everyone within their jurisdiction the rights and freedoms as defined in the ECHR. Article 2 protects the right of life. Article 8 protects the right to respect for private and family life. Both articles encompasses a positive obligation to act appropriately in case of a 'real and immediate' risk. According to the Supreme Court the term 'immediate' does not refer to imminence in the sense that the risk must materialise within a short period of time, but rather that the risk in question is directly threatening to persons involved. Both articles refer to serious damage to the environment. The protection afforded by both articles is not limited to specific persons, but to a society or the population as a whole. If it is clear that the real and immediate risk exists, states are obliged to take appropriate steps without having a margin of appreciation. The court may determine whether the measures taken by a state are reasonable and suitable. A state must take due diligence into account in its policy. Articles 2 and 8 must not result in an impossible or disproportionate burden being imposed on a state. Referring to the Vienna Convention on the Law of Treaties and the case law of the European Court of Human Rights (ECtHR), the Supreme Court highlights that any interpretation and application of articles 2 and 8 must be based on the so-called 'common ground' method. That is the Convention cannot be interpreted in a vacuum but must be understood in harmony with the general principles of international law, scientific insights and generally accepted standards are relevant.
Article 13 of the ECHR provides that if the rights and freedoms under the ECHR are violated, there exists the right to an effective remedy before a national authority, both practically and legally. Although the ECtHR has not yet issued any judgments regarding climate change, the Supreme Court considers the answer to the applicability of articles 2 and 8 in this case sufficiently clear. It therefore does not submit the questions to the ECtHR for an advisory opinion (as is possible since 1 June 2019). The Supreme Court's answer to the applicability of articles 2 and 8 of the ECHR in this case is that the Netherlands is obliged to do 'its part' in order to prevent dangerous climate change, even if it is a global problem. The Supreme Court bases this 'shared responsibility' on the UN Climate Convention, the various COP decisions, the 'no-harm principle' as a generally accepted principle of international law, the UN Draft Articles on Responsibility of States for Internationally Wrongful Acts, the civil law liability in many legal systems and from a ECHR perspective: the positive obligation to act appropriately and the need to provide an effective remedy.
Having defined the relevant legal framework under the ECHR, the Supreme Court goes on in answering the question of what this obligation on the part of the State means in concrete terms. The answer to this second question belongs, in principle, to the political domain, both internationally and nationally. The courts can assess whether the measures taken by the State are too little in view of what is clearly the lower limit of its share. Providing an effective legal protection under the ECHR, courts must examine whether there are sufficient objective grounds from which a concrete standard can be derived in the case in question. The State's duty under articles 2 and 8 ECHR to observe due diligence and pursue good governance implies that the State must properly substantiate that the policy it pursues remains above the lower limit of the State's fair share. In determining the State's minimum obligations, the courts must observe restraint, especially if rules or agreements are involved that are not binding in themselves. It is therefore only in clear-cut cases that the courts can rule that the State has a legal obligation to take measures.
Applying this standard to the facts established by the Court of Appeal, the Supreme Court then notes the large international consensus on the 25%-40% target by 2020. The Paris Agreement (2015) and the annual reports by the United Nations Environment Program, referring to the carbon budget and the emissions gap, show that the reduction of greenhouse gas emissions is more urgent than ever. In doing so, the Dutch State cannot hide behind the EU 20% reduction per 2020. The EU commitment to 20%-30% reduction is without prejudice to the individual responsibility of the EU Member States by virtue of the Climate Convention. Although the State lowered its target in 2011 with the argument that the same result can be achieved by accelerating the reduction of greenhouse gas emissions in the Netherlands after 2020, the State confined itself to asserting that there are in this context, and again, I quote: 'certainly possibilities'. Such rebuttal is insufficient if at the same time all greenhouse gas emissions lead to a reduction in the carbon budget still available ('no reduction is negligible'). Any postponement of the reduction means that future reductions will be increasingly far-reaching and costly. Postponement of the reduction will be more risky, making it less likely that the intended result of a global warming of no more than 2 degree Celsius will be realised. The Dutch State therefore has to comply with the reduction of at least 25% in 2020. Future adaptation is not a plausible alternative. Nor has the State sufficiently substantiated that such reduction creates an impossible or disproportionate burden.
Finally, the Supreme Court turns to the 'separation of powers' argument. The Supreme Court first acknowledges that by virtue of its own case law courts cannot order the State to create legislation. Such order intervenes in the political decision-making process involved in the creation of legislation. Furthermore, such order creates an arrangement that also applies to parties other than the parties to the proceedings. However, courts can issue a declaratory decision to the effect that the omission of legislation is unlawful. Courts may also order the public body in question to take measures in order to achieve a certain goal, as long as that order does not amount to an order to create legislation with a particular content. In that light, the court order to a reduction of 25% in this case is simply the application of the fundamental right that if the government is obliged to do something but fails to do so, it may be ordered to do so by the courts. Such court order intends to provide an effective legal protection as laid down in article 13 ECHR. This then brings the Supreme Court to the more general argument that it is not for the courts to make the political considerations necessary for a decision on the reduction of greenhouse gas emissions. As showed by the facts, this case involves an exceptional situation. In the Dutch constitutional system of decision-making, the reduction of greenhouse gas emissions is a power of the government and parliament. They have a large degree of discretion. It is up to the courts to decide whether the government and parliament have remained within the limits of the law by which they are bound. The policy that the Dutch State pursues since 2011 and intends to pursue in the future is clearly not in accordance with the law. At least, the Dutch State failed to make it clear that its policy is in fact in accordance with the law. The Supreme Court therefor upholds the decision of the Court of Appeal, and by doing so: of the District Court as well.
The Dutch Legal System
Before entering into the question what kind of precedent this decision could create, it is important to say a few things about the Dutch legal system in which this judgment was rendered. Dutch courts are not allowed to test parliamentary legislation to the Dutch constitution. However, Dutch courts are allowed to test parliamentary legislation to the ECHR. Unlike the District Court and the Court of Appeal, the Dutch Supreme Court does not trial the full case again. It only provides guidance on questions of law or legal procedure. Its decision is a 'onevoice' decision. Dissenting opinions are not possible, but reflected indirectly in the way the decision is being given. A precise and elaborate decision, like this one, provides not only guidance to society; it is also the result of a certain level of agreement within the Supreme Court. Any judgment is preceded by an advice of the Advocat- General of the Supreme Court. In this case, even two Advocats-General rendered a 250 pages advice. This advice entails many valuable assessments of the relevant legal questions and issues of law. It furthermore provides for an advice. Like the judgment, the advice was translated in English and is available via internet. The Supreme Court followed the advice, albeit with its own line of reasoning.
Turning then to the question of precedent, I think it is important to underline that the gap in the debate between Urgenda and the Dutch State was deep, but not very broad. Both Urgenda and the Dutch State agreed to the need for action. The only difference was the year 2020. The Dutch State argued it was free to reduce the reduction to less than 20% and to speed it up afterwards. Urgenda argued the State should comply with the internationally agreed reduction path of at least 25% in 2020. Helpful to Urgenda was that the State full-heartedly acknowledged the need for at least 25% in 2020 up until 2011. Only after 2011, the State suddenly changed its position, without being able to explain properly why. On appeal, Urgenda furthermore limited its claim to the minimum reduction of 25%, not 40%. Finally, Urgenda did not ask for any penalty payments nor damages. This all helped, I believe, the courts to allow the requested order.
Having said this, the judgment contains various elements that can have precedent effect in other cases. First, both the Court of Appeal and the Supreme Court rely on articles 2 and 8 of the ECHR. The Supreme Court believes such application is even sufficiently clear not to ask an advisory opinion of the ECtHR. The very same day the Supreme Court decision was rendered, the UN High Commissioner for Human Rights Michelle Bachelet issued a press release saying we 'cannot underline too much the importance of today's decision, and the even greater importance of it being swiftly replicated in other countries'1. On 31 January this year, the President of the European Court of Human Rights in its opening speech of the judicial year highlighted that 'the environmental emergency is such that the Court cannot act alone and that we must all share responsibility'. The ECtHR president referred as an example to the Urgenda decision in the Netherlands. According to the ECtHR president, 'by relying directly on the Convention, the Dutch judges highlighted the fact that the European Convention of Human Rights really has become our shared language and that this instrument can provide genuine responses to the problems of our time'. Even after Brexit, the ECHR still applies in Great Britain as well.
The president's statement mentions a potential other element that may have precedent effect: the shared responsibility. I believe the acceptance of a shared responsibility is of paramount importance. It eliminates all kind of difficult questions of causation. More important, it shows the true origin of the State's obligation: a duty to accept a distribution and allocation of the increasingly scarce environmental resources, as is usually done when we deal with other scarce resources such as money or property. The strongest argument by the Dutch State was undoubtedly the very little impact an additional mitigation of about 5% less emissions per 2020 would have on the worldwide quest to limit the temperature rise to 2 degree Celsius per 2100.2 In case of such trivial effectiveness, a simple duty of care or the precautionary principle is not a very convincing argument against the policy freedom of the executive, in a democratic society. Climate risk is not a risk to be solved by one person. Climate risk is a shared risk that can only be addressed adequately by way of a proper distribution and allocation. Distribution rules also apply if individual causality is nonexistent. A red traffic light is a red traffic light, also late at night, when seemingly no other traffic or risk is present. By not conforming itself to the internationally agreed consensus, the Dutch State essentially acted as a free rider, capitalizing on the fact that other, large EU countries like Germany, France and the United Kingdom do comply with the internationally agreed emissions standard.
The more pressing and 'clear-cut' the circumstances, as the Supreme Court put it, the less depending such duty to accept a distribution or allocation should be on human rights or the binding effect of international decisions. On 17 January 2020 the United States Court of Appeals for the Ninth Circuit 'reluctantly' dismissed the request in the Juliana v United States case3 to order the United States government to come up with a remedial plan for the reduction of greenhouse gas. The majority held that 'any effective plan would necessarily require a host of complex policy decisions entrusted to the wisdom and discretion of the executive and legislative branches'. Judge Staton dissented. Referring to 'the perpetuity' as a 'central role' in the 'constitutional structure', being threatened by the present greenhouse emissions: 'a federal court need not manage all of the delicate foreign relations (…)' and 'throw up their hands', according to judge Staton. I hope that the case will go to the US Supreme Court and that the US Supreme Court will consider the most simple 'remedial plan' as embraced by the Dutch courts: a 25% reduction for the Western world per 2020, or as soon as possible afterwards. So that in the words of UN High Commissioner Michelle Bachelet the decision to act is 'being swiftly replicated in other countries'. The facts are sufficiently clear and pressing.
|Stijn Franken is part of the NautaDutilh team, led by Freerk Vermeulen, that represented Urgenda pro bono at the Supreme Court of the Netherlands. Stijn frequently writes and speaks about new risks such as climate risks. He lectures insurance law at Leiden University, and has together with his wife Jacobien two children that frequently, in their own typical way, remind him of the urgent need for change.|
For more information or contact, please email:Stijn.Franken@nautadutilh.com