DUTCH COURT: NETHERLANDS MUST DO MORE TO REDUCE GREENHOUSE GAS EMISSIONS

Posted on July 21, 2015 by John Dernbach

            On June 25, 2015, The Hague District Court in the Netherlands issued an order and opinion requiring the Netherlands to reduce its greenhouse gas emissions by 25 percent below 1990 levels by 2020.  This level is more ambitious than the 17 percent reduction goal to which the Dutch government has currently committed.  The case, Urgenda Foundation v. State of the Netherlands suggests what courts may be willing to do when government policy lags behind what climate science indicates is needed. 

            Urgenda sued the government in tort under the Dutch Civil Code on behalf of itself and 886 individuals, claiming among other things that “the State is in breach of its duty of care for taking insufficient measures to prevent dangerous climate change.”  For U.S. lawyers, accustomed to limited governmental tort liability under federal and state law, the breadth of this claim may be startling.  But it was also novel, though less so, to the court, which explained that this legal issue “has never before been answered in Dutch proceedings.” 

            Although the state has considerable discretion in policy making for climate change, the court said, that discretion is constrained by both the U.N. Framework Convention on Climate Change and the Treaty on the Functioning of the European Union (TFEU).  Objectives and principles of the Climate Change Convention and the TFEU that constrain Dutch discretion, the court said, include “protection of the climate system, for the benefit of current and future generations, based on fairness;”  the precautionary principle, and consideration of “available scientific and technical information.” 

            Urgenda’s case was based on numerous scientific reports, including the 2007 report of the Intergovernmental Panel on Climate Change (IPCC), which said that Annex I countries (including both the Netherlands and the United States), need to reduce their greenhouse gas emissions by 25-40 percent below 1990 levels by 2020, and 80-95 percent below 1990 levels by 2050, to limit the global temperature increase to 2.0 degrees Celsius.    Parties to the Convention on Climate Change have agreed that a temperature increase above that level (equivalent to 3.6 degrees Fahrenheit) would be dangerous. 

            After analyzing multiple factors relevant to the appropriate duty of care, the court concluded that the state “has acted negligently and therefore unlawfully towards Urgenda by starting from a reduction target for 2020 of less than 25% percent compared to the year 1990.”   It ordered a 25 percent reduction, saying there are “insufficient grounds for the lower limit” of a 40% reduction from 1990 levels specified in the 2007 IPCC report.  

            Although the case was decided under Dutch legal rules that are quite different from our own, and may be appealed, it has significance to U.S. lawyers.  First, it shows great respect for climate change science, describing IPCC and other scientific reports in considerable detail.  The case therefore underscores the important role that courts can play in affirming the validity of climate change science.

            Second, the court’s willingness to interpret domestic law in ways consistent with international commitments, including those in the Convention on Climate Change as well as the commitment to keep warming to 2.0 degrees Celsius, raises an interesting and important question about whether U.S. domestic laws related to climate change also should be interpreted in ways consistent with international commitments.  U.S. courts have often held that statutes should be construed in a manner consistent with treaties and other international obligations.    

            Finally, the decision indicates the value of judicial intervention as a way of forcing governments and businesses to do more than they are doing.  Additional legal support for such cases was provided, in March 2015, by the issuance of the Oslo Principles on Global Climate Change Obligations.  These principles were developed by a group of legal experts from around the world.  The central idea is that “[s]tates and enterprises must take measures, based on” the precautionary principle, “to ensure that the global average surface temperature increase never exceeds pre-industrial temperature by more than 2 degrees Celsius.”  Many sources of local, national, and international law support these principles, the experts said, including “international human rights law, environmental law and tort law.” 

            According to a report issued on July 16, 2015 by the American Meteorological Society, 2014 was the warmest year on record.  As the effects of climate change intensify, there may be more such litigation, and decisions like this could become more common.       



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