The greenhouse gas (GHG) emissions in Netherlands must be reduced by at least 25% by the end of 2020 compared to the level of 1990. That has been ruled on October 9, 2018 by The Hague Court of Appeal in the case opposing Urgenda Foundation Vs. The State of Netherlands. With this ruling, the Court of Appeal has upheld and broadened the judgment of The Hague District Court of 2015.

The Hague Court of Appeal has based its ruling on the State’s duty to protect the life and family life of citizens under the Dutch Constitution and also the European Convention of Human Rights (ECHR). Since the Hague District Court decision of 2015, climate litigation has been filed against governments around the world. No doubt that the The Court of Appeal decision is likely to influence other courts around the world especially with regard to the interpretation of the ECHR. The Dutch government has the option to appeal the case to the Supreme Court, and has not stated whether it will do so or not.

Unofficial translation of the Hague Court of Appeal decision is available here.

October is a busy month in Climate Change. Shortly after the release of the IPCC’s Special Report on the impact of global warming of 1.5 °C (see our October 8 post), on October 9, 2018 the Hague Court of Appeal upheld a 2015 district court ruling that the Dutch government is obligated to limit its GHG to 25% below 1990 levels by the end of 2020. The Dutch government had pledged a 17% reduction, planned by Mark Rutte’s liberal administration but both the District Court and Hague Court have now found that insufficient. The district and Appeal court decisions mark a critical moment for climate change litigation allowing citizens to hold their government accountable for contributing to climate change and force it to limit its GHG emissions for reasons other than a statutory mandate (such as the U.S. Clean Air Act). 

Facts of the case

Brought by a Dutch environmental group, the Urgenda Foundation (NGO), and 886 Dutch citizens, the lawsuit argued that the government’s inadequate action on climate change violated a duty of care to protect plaintiffs’ rights under the ECHR and the Dutch constitution.

Before filing the lawsuit, Urgenda had asked the Dutch government to agree to cut GHG emissions by 40 % from the 1990 levels by 2020, an upper-end target for developed countries that was recommended by the U.N. Intergovernmental Panel on Climate Change (IPCC) to keep global temperatures from rising more than 2 degrees Celsius from pre-industrial levels, but the government refused.

District Court decision of  June 24, 2015

In its decision, the District Court concluded, “Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring, the court concludes that the State has a duty of care to take mitigation measures. The circumstances that the Dutch contribution to the present global greenhouse gas emissions is currently small does not affect this.”

In reaching this conclusion, the court cited various legal grounds including the Dutch Constitution; the emissions reduction targets of the European Union; principles under the ECHR; the “no harm” principle of international law; the doctrine of hazardous negligence; the principle of fairness, the precautionary principle, and the sustainability principle embodied in the UN Framework Convention on Climate Change; and the principle of a high protection level, the precautionary principle, and the prevention principle embodied in the European climate policy.

The court also undertook a detailed examination of reports of the IPCC, the United Nations Environment Programme, and various Dutch institutions, and concluded that the mandated 25% reduction was the level needed to meet the country’s fair contribution toward the UN goal of keeping global temperature increases within 2 °C of pre-industrial conditions. The lower court’s ruling inspired lawsuits subsequently filed in other countries such as Belgium, Norway, Pakistan, Ireland, New Zealand, Switzerland.  

Hague Court of Appeals’ decision of October 9, 2018

After the district court decision, the Dutch government appealed on 29 grounds. Urgenda also submitted a cross-appeal, contesting the court’s decision that Urgenda cannot directly invoke plaintiffs’ rights under the ECHR in these proceedings.

It is decision, the Hague Court of Appeals concluded that “the State is acting unlawfully (because in contravention of the duty of care under Articles 2 and 8 ECHR) by failing to pursue a more ambitious reduction as of end-2020, and that the State should reduce emissions by at least 25% by end-2020.”

A broad victory for Urgenda Foundation:

The Court of Appeal has expanded the victory scope that Urgenda  obtained from the District Court in 2015. The Hague Court of Appeal recognised Urgenda’s capacity to directly bring claims under the ECHR to uphold plaintiffs’ rights to life (under ECHR Article 2) and rights to private life, family life, home, and correspondence (under ECHR Article 8). Further, the court determined that climate change poses “a real threat” to these rights, triggering a government obligation to act.

The court also rejected the government’s list of appeals. Separation of powers-type arguments failed, as the court rejected the government’s arguments that the lower court’s decision constituted “an order to create legislation”. The court also found nothing in Article 193 of the Treaty on the Functioning of the European Union that prohibits a member states from taking more ambitious climate action than the E.U. as a whole and that adaptation measures cannot compensate for the government’s duty of care to mitigate greenhouse gas emissions; and that the global nature of the climate change problem and the diffuse nature of gas emissions does not excuse the Dutch government from action. The Appeal Court’s decision is likely to influence other courts around the world, particularly in regard to the interpretation of the ECHR.