Case name:    Urgenda Foundation v. State of the Netherlands (Ministry of Infrastructure and the Environment)

Jurisdiction:    Netherlands

Type of claim:    Claim against federal legislature or government to enact stricter GHG reduction targets

Summary of result:    Court orders the State to reduce greenhouse gas emissions by 25% by the end of 2020 vs. 1990 levels.

Judgment final:        Yes

Court instances:

Court	Type of decision	Summary of decision
Hague District Court Judgment of 24 June 2015	First instance decision	Court orders the State to reduce greenhouse gas emissions, by the end of 2020, by 25% vs. 1990 levels.
Hague Court of Appeal Judgment of 9 Oct 2018 Case no.: 200.178.245/01	Appeal by State of the Netherlands against Hague District Court decision.	Appeal by the State rejected.
Supreme Court Judgment of 20 Dec 2019 Case no.: 19/00135	Appeal by State of the Netherlands against Hague Court of Appeal decision.	Appeal by the State rejected.

 

Source of claims

Tort law: Violation of duty of care under Book 6, Section 162 of the Dutch Civil Code

Fundamental Rights: Violation of Art. 2 (Right to life) and Art. 8 (Right to respect for private and family life) of the European Convention on Human Rights (ECHR)

 

Summary of Judgment

Facts and claims of the parties

The claimant Urgenda is a citizens’ platform with members from various domains in society, involved in the development of plans and measures to prevent climate change. Urgenda also acts on behalf of 886 individuals.

In their judgments, the Hague District Court and the subsequent courts relied on the following facts, which were not disputed by the State:

In its “Fourth Assessment Report” of 2007 and “Fifth Assessment Report” of 2013/2014, the Intergovernmental Panel on Climate Change (IPCC) established that a global temperature rise of 2°C above the pre-industrial level creates the risk of dangerous, irreversible climate change. The reports also found that a temperature rise of 2°C maximum can only be achieved when the concentration of greenhouse gases in the atmosphere is stabilised at about 450 ppm. The IPCC concluded that in order to reach a maximum of 450 ppm, the total emission of greenhouse gases by the Annex I countries (developed countries) will have to be reduced by 25 to 40%, compared to 1990 levels, by 2020, and by 80 to 95%, compared to 1990 levels, by 2050.

Under the 1992 United Nations Framework Convention on Climate Change and the 1997 Kyoto Protocol, the European Union undertook to reduce its mean annual GHG emissions by 8% during the 2008-2012 period, compared to 1990s levels. This reduction commitment by the EU was internally allocated to the member states, with the Netherlands agreeing to a 6% reduction target. In the 2012 Doha Amendment, the European Union committed to a 20% reduction target by 2020, compared to 1990s levels. However, the Doha Amendment never entered into force.

In 2009, the European Union issued Decision No 406/2009/EC (the “Effort Sharing Decision”) which allocated the European Union’s overall GHG reduction target on such matters not falling under the European Emission Trading System (ETS) to the member states. For the Netherlands, this share amounted to a reduction of 16% during the period of 2013-2020, compared to 2005 levels.

In 2007, the Dutch government formulated a climate work programme, which included a policy of reducing GHG emissions by 30% by 2020, compared to 1990s levels. In several policy documents, the Dutch government stated that it regarded a reduction effort by developed countries of 25-40% by 2020 as necessary in order to stay on a feasible track to keeping the 2°C goal within reach. In spite of these statements, the Dutch government later limited its own target to a reduction of mere 20% by 2020.

In 2010, the Dutch share in global GHG emissions was 0.42% (for comparison, the United States’ share was 13.19% and China’s share was 21.97%).

Urgenda asked the Hague District Court for a number of declarations, among others that

• the joint volume of the current annual GHG emissions in the Netherlands is unlawful; and
• the State acts unlawfully if it fails to reduce or have reduced the annual GHG emissions in the Netherlands by 40%, in any case at least 25%, compared to 1990, by the end of 2020;
• alternatively: the State acts unlawfully if it fails to reduce or have reduced the annual GHG emissions in the Netherlands by at least 40% compared to 1990, by the end of 2030.

Furthermore, Urgenda asked the Court to order the State to reduce the joint volume of annual greenhouse gas emissions in the Netherlands by 40% by the end of 2020, in any case by at least 25%, compared to 1990.

Urgenda argued that the State is in breach of Article 21 of the Dutch Constitution, Art. 2 and 8 of the European Convention on Human Rights, as well as the duty of care arising under Book 6, Section 162 of the Dutch Civil Code.

The State argued that it did not commit any unlawful action against Urgenda. While acknowledging the need to limit the global temperature rise to 2°C, the State argued that its efforts were, in fact, aimed at achieving this objective. The State further argued that unilateral national reduction efforts would not have the desired effect, as any reductions by the Netherlands would be neutralized by an increase in emissions in other countries. Industries would relocate from the Netherlands to other countries, and Dutch firms would be disadvantaged. Finally, the State argued that allowing the claims would be contrary to the State’s discretionary powers to set climate policy. A court order as envisioned by Urgenda would interfere with the system of separation of powers and harm the State’s negotiating position in international politics.

 

Some background on Dutch Law

Article 21 of the Dutch Constitution stipulates that it shall be the concern of the authorities to keep the country habitable and to protect and improve the environment.

Book 6, Section 162 of the Dutch Civil Code stipulates that a person who commits a tort towards another which can be imputed to him, must repair the damage which the other person suffers as a consequence thereof. This provision has been interpreted by Dutch courts to establish an unwritten duty of care of the State.

According to Art. 120 of the Dutch Constitution, courts do not have the power to review whether acts of Parliament are compatible with the Constitution. However, Art. 94 stipulates that statutory regulations shall not be applicable if they are in conflict with the provisions of an international treaty that the Netherlands are a party to. In effect, that means that while courts cannot review whether a law complies with constitutional rights, it can review its compatibility with binding international human rights treaties (see e.g. Jerfi Uzman, Tom Barkhuysen & Michiel L. van Emmerik, “Dutch National Report”, in Allan R. Brewer-Carías, Constitutional Courts as Positive Legislators (Cambridge University Press: Cambridge, 2011), 645 at 646). The Netherlands are a party to the European Convention on Human Rights (ECHR), which in Art. 2 protects everyone’s right to life, and in Art. 8 protects everyone’s right to respect for his private and family life, his home and his correspondence.

 

Hague District Court Judgment

The Court first assessed whether Urgenda had legal standing to bring the claims. Under Book 3, Section 303 of the Dutch Civil Code, an individual or legal person is only entitled to bring an action to the civil court if he has sufficient own, personal interest in the claim. Under Book 3, Section 303a of the Dutch Civil Code, a foundation or association with full legal capacity may also bring an action to the court pertaining to the protection of general interests or the collective interests of other persons, in so far as the foundation or association represents these general or collective interests based on the objectives formulated in its by-laws. (Hague District Court Judgment at para. 4.4). The Hague District Court found that Urgenda has standing under Book 3, Section 303a of the Dutch Civil Code, in so far as Urgenda acts on behalf of current generations of Dutch citizens. It further found that Urgenda also has standing to represent persons outside the Dutch national borders, as well as future generations. (Hague District Court Judgment at paras. 4.7-8).

The Court then analyzed the duties of the Dutch State with regard to GHG emission reductions. Based on the IPCC reports listed above, the Court concluded that in view of risk management and from scientific considerations, there is a strong preference for stabilizing the maximum global concentration of GHG emissions in the atmosphere at 450 ppm, rather than 500 ppm or even higher (Hague District Court Judgment at para. 4.22). The 450 pm scenario calls for a reduction target for Annex I countries (developed countries) of 25-40% by the year 2020. This means that the Netherlands and the European Union as a whole should set their reduction targets at 25-40% minimum by 2020, as compared to 1990s levels. The EU and the Netherlands have acknowledged this and (initially) focused on an emission reduction target of 30%. However, the EU subsequently refused to commit to more than a 20% reduction, with the Netherlands joining this path from about 2010 on. (Hague District Court Judgment at para. 4.29).

Turning next to the question whether a legal obligation of the State exists towards Urgenda, the Court found that Urgenda could not derive certain specific rights from Article 21 of the Dutch Constitution, nor from the Netherlands’ international obligations (Hague District Court Judgment at paras. 4.44). The Court further held that Urgenda, as a legal person, could not rely on the rights conferred by Art. 2 and 8 of the European Convention on Human Rights (ECHR). Only a natural person’s physical integrity can be violated or her privacy be interfered with. (Hague District Court Judgment at para. 4.45).

However, Art. 2 and Art. 8 ECHR and their interpretation given by the European Court of Human Rights (ECtHR), particularly with respect to environmental right issues, can serve as a source of interpretation for national laws (Hague District Court Judgment at para. 4.46). First, it can be derived from these rules what degree of discretionary power the State is entitled to in how it exercises the tasks and authorities given to it. Second, the objectives laid down in these regulations are relevant in determining the minimum degree of care the State is expected to observe. (Hague District Court Judgment at paras. 4.52).

The Court then focused on the duty of care of the State, as stipulated by Book 6, Section 162 of the Dutch Civil Code. A violation of the duty of care requires, first, that the State has committed an unlawful hazardous negligence, and second, that the State action was below standard and thus beyond the State’s discretionary powers (Hague District Court Judgment at paras. 4.53).

In determining the scope of hazardous negligence, the Court took into account the Netherlands’ international obligations and particularly the principle of fairness, the precautionary principle and the sustainability principle, as formulated in Article 3 of the UN Framework Convention on Climate Change. The principle of fairness means that the policy should not only start from what is most beneficial to the current generation at this moment, but also what this means for future generations, so that future generations are not exclusively and disproportionately burdened with the consequences of climate change. The principle of fairness also expresses that developed countries have to take the lead in combating climate change and its negative impact. The precautionary principle expresses that measures cannot be delayed to await full scientific certainty. The sustainability principle expresses that the signatories to the Convention will promote sustainability and that economic development is vital for taking measures to combat climate change. (Hague District Court Judgment at paras. 4.57-59).

The Court found that there were no cost considerations which would prevent the Dutch State from reaching a 25% reduction target in 2020. The Court thereby relied on the fact that until 2010, the Netherlands had had a national reduction target of 30%, and the State had not conclusively argued that pursuing the 30% target would not be cost-effective in comparison to the slower reduction path. Rather, climate science supports Urgenda’s argument that taking immediate measures is more cost-effective than postponing measures to a later time. (Hague District Court Judgment at paras. 4.70-71). The Court therefore concluded that the State has a duty of care to mitigate as quickly and as much as possible (Hague District Court Judgment at paras. 4.73).

Regarding the discretionary powers of the State, the Court found that if there was a high risk of dangerous climate change with severe and life-threatening consequences for man and the environment, the State had the obligation to protect its citizens by taking appropriate and effective measures (Hague District Court Judgment at paras. 4.74). Due to the principle of fairness, the State would also have to take account of the fact that the costs are to be distributed reasonably between the current and future generations. If according to the current insights it turns out to be cheaper on balance to act now, the State has a serious obligation, arising from due care towards future generations, to act accordingly. Furthermore, the State needs to take into account the precautionary measure and the principle of “prevention is better than cure”. To all these principles it applies that if the State wants to deviate from them, it will have to argue and prove sufficient justification for the deviation. The State has not provided such justification. (Hague District Court Judgment at paras. 4.76-77).

The Court further rejected the argument made by the State that the emissions of the Netherlands are negligible on a global scale. Emission reduction constitutes both a joint and individual responsibility of the signatories to the UN Climate Change Convention (Hague District Court Judgment at paras. 4.78-79). The Court also did not follow the argument that reductions achieved by the Netherland would be neutralized by corresponding higher emissions in other countries, and that Dutch businesses would be disadvantaged compared to businesses in other countries. It found that the State had presented no evidence to support these claims (Hague District Court Judgment at paras. 4.81-82).

Finally, the Court addressed the State’s allegations that allowing Urgenda’s claim would interfere with the distribution of powers between legislature, government and judiciary in a democratic system. Courts provide legal protection and settle legal disputes. It is an essential feature of the rule of law that the actions of political bodies can, and sometimes must, be assessed by an independent court. A court must exercise restraint when it reviews policy-related considerations which impact third parties beyond the parties to the case before it, all the more if the court does not have a clear picture of the magnitude and meaning of these impacts. The present case, however, the Hague District Court found, essentially concerned legal protection and therefore required judicial review. The possibility and even certainty that the issue is also subject to political decision-making is no reasons for curbing the judge in his task and authority to settle disputes. (Hague District Court Judgment at paras. 4.95-98). Furthermore, the Court’s decision does not order or prohibit the State from taking certain legislative measures or adopting a certain policy, but the State will retain full freedom as to how to comply with the decision (Hague District Court Judgment at para. 4.101).

 

Hague Court of Appeal Judgment

The Hague Court of Appeal rejected the appeal by the State of the Netherlands against the District Court’s judgment. Urgenda’s cross appeal, which concerned the finding of the Hague District Court that Urgenda could not directly rely on Art. 2 and Art. 8 of the European Convention on Human Rights (ECHR), was granted.

In addition to relying on the facts established by the Hague District Court, the Hague Court of Appeal recognized that the insight had developed over the past few years that a safe temperature rise should not exceed 1.5°C, which comes with a lower ppm level, namely 430 ppm (Hague Court of Appeal Judgment at para. 3.5).

According to the Court, Urgenda can rely on Art. 2 and Art. 8 ECHR. While the European Court of Human Rights (ECtHR) has decided that it will not hear public interest actions, but only those by claimants whose interests are directly affected, this cannot serve as a basis for restricting access to Dutch courts. Rather, Dutch law, namely Book 3 Sec. 305a of the Dutch Civil Code, provides for class actions by interest groups. Since individuals who fall under the Dutch State’s jurisdiction may invoke Art. 2 and Art. 8 ECHR, Urgenda is also entitled to do so on their behalf. (Hague Court of Appeal Judgment at paras. 35-6).

The Court did not find it necessary to decide whether Urgenda was entitled to act on behalf of future generations of Dutch nationals or of current and future generations of foreigners, since it was sufficient that Urgenda acted on behalf of current generations of Dutch nationals (Hague Court of Appeal Judgment at para. 37).

The Court then focused on Art. 2 and Art. 8 ECHR, stating that they impose positive and negative obligations on the government, including the positive obligation to take concrete actions to prevent a future violation of these interests (this is the duty of care). If the State knows that there is a real and imminent threat to these rights, it must take precautionary measures to prevent infringement as far as possible. (Hague Court of Appeal Judgment at paras. 41-3). From scientific reports and from various international treaties signed by the Dutch State, it is evident that a real threat of dangerous climate change exists, 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. It follows from Articles 2 and 8 ECHR that the State has a duty to protect against this real threat. (Hague Court of Appeal Judgment at para. 45).

Relying on reports by the IPCC as well as international agreements, the Court established that a reduction target of at least 25% by the end of 2020 is necessary in order for the State to comply with its duty of care. Specifically, the State has failed to give reasons why a lower reduction target should be regarded as credible. (Hague Court of Appeal Judgment at paras. 46-53).

Rejecting the State’s argument that Dutch reduction measures would be neutralized by increased emissions in other states, the Court found that many other EU member states had already enacted stricter reduction targets then the Netherlands (Hague Court of Appeal Judgment at para. 56). The State has neither substantiated why such a “waterbed effect” was to be expected, nor its further claims that companies would move to other States, and that increased emission reductions would disadvantage Dutch companies in global comparison (Hague Court of Appeal Judgment at paras. 55-57).

Finally, the Court rejected the State’s argument that the system of separation of powers should not be interfered with. If the State violates human rights, this calls for the provision of measures. At the same time, the order to reduce emissions gives the State sufficient room to decide how to comply with it. (Hague Court of Appeal Judgment at para. 67).

 

Dutch Supreme Court Judgment

The Supreme Court rejected the appeal by the State, upholding the Hague District Court judgment as final.

The Court affirmed the Hague Court of Appeal’s assessment that Art. 2 and Art. 8 ECHR impose an obligation on states to offer protection from the threat of climate change. The Dutch State had asserted that the danger was not specific enough to fall within the scope of protection, and that the environment as such is not protected under the ECHR (Supreme Court Judgment at para. 5.1). The Supreme Court, relying on previous jurisprudence by the European Court of Human Rights (ECtHR), rejected these assertions. Art. 2 ECHR imposes positive obligations on states to safeguard the lives of those within their jurisdiction, inter alia in the event of hazardous industrial activities, if these create a real and immediate risk to persons. Art. 8 ECHR provides protection where the materialization of environmental hazards may have direct and serious consequences for a person’s private life. This is the case if serious environmental contamination affects individuals’ well-being, prevents them from enjoying their homes and affects their private and family life adversely. (Supreme Court Judgment at paras. 5.2.2-3).

While climate change is a global threat that needs to be solved globally, it follows from Art. 2 and Art. 8 ECHR, according to the Supreme Court, that the Netherlands has to do its part in reducing GHG emissions (Supreme Court Judgment at para. 5.7.1). A state cannot negate its responsibility simply because other countries do not comply with their partial responsibility. Nor can the assertion that a country’s share in global greenhouse gas emissions is very small and makes little difference on a global scale serve as a defence (Supreme Court Judgment at para. 5.7.7).

The decision which adequate measures the State has to take to reduce GHG emissions belongs, in principle, to the political domain, both internationally and nationally (Supreme Court Judgment at para. 6.2). The Court can, however, assess whether the measures taken by the State are too little in view of what is clearly the lower limit of its share of worldwide measures (Supreme Court Judgment at para. 6.3).

The Court next examined in detail the findings of climate sciences, international agreements and declarations relating to the necessary reduction of GHG emissions, as well as past Dutch climate policies (Supreme Court Judgment at paras. 7.1-7.4.6). The Court found that there is a high degree of international consensus that a global warming of 2°C is the maximum to be deemed responsible. In accordance with the precautionary principle, more far-reaching reduction measures should be taken rather than less far-reaching. (Supreme Court Judgment at paras. 7.2.10-11). This requires a reduction target of 25-40% by Annex I countries. The Dutch State did not provide any explanation for why a lower target should apply to the Netherlands (Supreme Court Judgment at paras. 7.3.1-6).

The Court also rejected the State’s argument that it could receive the same overall reduction result if it reduced more GHG emissions after 2020. The Court found that any postponement of reduction efforts means that emissions in the future will have to be reduced at an increasingly large scale, which will be costlier and riskier. (Supreme Court Judgment at paras. 7.4.3).

In view of the above, the Court concluded that the Dutch State was under an obligation to explain that its envisioned reduction measures were feasible and sufficiently effective to keep the 2°C target and the 1.5°C target within reach. The State had failed to do this. (Supreme Court Judgment at para. 7.4.6).

Regarding the question of separation of powers, the Court held that the judiciary cannot order the legislator to create legislation with a particular content. This does not, however, prevent courts from issuing a declaratory decision to the effect that omission of legislation is unlawful, nor from ordering a public body to take measures to achieve a certain goal. Such an order leaves the State free to choose which exact measures should be taken. (Supreme Court Judgment at paras. 8.2.4-7). The Court finally also rejected the State’s claim that such an order would interfere with political decision making. While the government and parliament have a large degree of discretion, it is up to the courts to decide whether government and parliament have remained within the limits of the law, especially under its human rights obligations. In an exceptional situation such as this, where there is a threat of dangerous climate change and it is clear that measures are urgently needed, the ruling by the Hague District Court was therefore justified. (Supreme Court Judgment at paras. 8.3.1-5).