Urgenda Foundation v. The Netherlands  HAZA C/09/00456689 (June 24, 2015); aff’d (Oct. 9, 2018) (District Court of the Hague, and The Hague Court of Appeal (on appeal))
Urgenda Foundation and a group of 900 Dutch citizens sued the Dutch government to compel the state to reduce greenhouse gas emissions - primarily CO2 - more aggressively. The Hague District Court determined the Dutch government must reduce greenhouse gas emissions by at least 25 percent (compared to 1990) by 2020 to fulfill its duty of care to protect Dutch citizens against the imminent danger caused by climate change.
A central question of the case was whether the state had a duty to impose further reductions on greenhouse gas emissions above the limits already established in Dutch climate policy. Urgenda pointed to three sources of law supporting this duty of care: Articles 2 and 8 of the European Convention on Human Rights; Article 21 of the Dutch Constitution; and the general duty of care in the Dutch civil code. Para. 4.35.
The Hague District Court declared that Urgenda could not rely on either the European Convention on Human Rights or the Dutch constitution. Paras. 4.36, 4.45. The Court did, however, determine that the State breached its duty of care under the Dutch civil code, which requires parties to take precautionary measures to mitigate a hazardous situation. Para. 4.54.
Although the case turned on the state’s duty of care under the Dutch civil code, the District Court considered United Nations and European Union climate agreements, along with international law principles and climate science, to define the scope of the state’s duty of care with respect to climate change. Paras. 4.52. The Court declared that international obligations and principles have a “reflex effect” in national law. Para. 4.43. Courts may take international law obligations and principles into account when they interpret open standards in national laws. On this basis, the District Court concluded that the government acted negligently when it set a target for CO2 emission reductions at 17 percent compared to 1990 levels, instead of 25 percent. Para. 4.93.
Other key points that could support other cases:
The Court declared that implementation of adaptation measures alone will not satisfy the state’s duty of care. Mitigation is the “only effective remedy” and thus the Netherlands “has a duty of care to mitigate as quickly and as much as possible.” Paras. 4.73 - 4.75.
The Court rejected the state’s argument that unilateral emissions reductions by the Netherlands would only reduce global emissions by less than 0.1%. “[I]t has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase in CO2 levels in the atmosphere and therefore to hazardous climate change.” Para. 4.79 (emphasis added).
The District Court found “[a] sufficient causal link can be assumed to exist between the Dutch greenhouse gas emissions, global climate change and the effects (now and in the future) on the Dutch living climate.” Para. 4.90.
Science played an important role in the decision. The District Court quoted extensively from the Intergovernmental Panel on Climate Change (IPCC) Assessment Reports, which report scientific information on the scope, effects and causes of climate change. This should encourage other tribunals to view the IPCC reports as respected authority on climate science.
On appeal, the Hague Court of Appeals upheld the District Court’s decision that the Netherlands is breaching its duty of care by “failing to pursue a more ambitious reduction” of greenhouse gas emissions, and agreed with the lower court’s finding that the State should reduce its emissions by at least 25% by the end of 2020. Para. 76.
The Court of Appeals took the opportunity to review the District Court’s determination that Urgenda could not directly invoke Articles 2 and 8 of the European Convention on Human Rights. These provisions protect the right to life and the right to respect for private and family life, and have been interpreted by the European Court of Human Rights to protect the right to a healthy environment. The District Court eliminated this claim on the basis of Article 34 of the Convention, which precludes “public-interest” actions invoking the Convention before the European Court of Human Rights. (In other words, only individual claimants whose interests have been affected may access the European Court of Human Rights.) Para. 35.
The Court of Appeals disagreed with the disposition of this particular claim. It declared that Article 34 of the European Convention does not govern access to Dutch Courts. Para. 36. Dutch law allows class actions by interest groups in domestic courts. Id. For that reason, the District Court should have permitted Urgenda to directly invoke the European Convention on Human Rights on behalf of its members. Id.
Turning to the question whether the Netherlands violated Articles 2 and 8 of the Convention, the Court of Appeals explained that these provisions impose a positive obligation on the state to protect its citizens from “all activities - public and non-public, which could endanger the rights protected in these articles.” Para. 43. Climate change, according to the Court, is a real and imminent threat and requires the State to take precautionary measures to prevent infringement of rights “as far as possible.” Id. The Court of Appeals continued:
“[T]he Court believes 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/or a disruption of family life. . . .It follows from Articles 2 and 8 of the ECHR that the State has a duty to protect against this real threat.” Para. 45.
The State failed to fulfill its duty of care under the European Convention “by not wanting to reduce emissions by at least 25% by end-2020.” Para. 73.
The unofficial English translation of the 2018 decision:
The official version of the 2018 decision is the Dutch text: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2018:2591