Climate change litigation: Dutch Supreme Court upholds Urgenda decision

Recap

As we informed you earlier this year, climate change litigation covers a wide range of possible cases, and is happening worldwide. The Dutch Urgenda case is the most prominent example of successful climate change litigation so far. In 2015, the The Hague Court of first instance ordered the Dutch State in 2015 to reduce Dutch greenhouse gas emissions by 25% compared to 1990, by the end of 2020. This order was confirmed in appeal by the Court of Appeal of The Hague. On Friday 20 December 2019, the Dutch Supreme Court rejected the Dutch State’s cassation appeal against this decision.

This blog provides you with a short summary of the decision of the Dutch Supreme Court, and the possible effects on other climate change cases that are currently pending.

Decision of the Dutch Supreme Court

Context

The Dutch government appealed the decision of the The Hague Court of Appeal on nine grounds. The first two grounds concerned the interpretation by the Court of Appeal of Articles 2 and 8 of the European Convention on Human Rights, while the third ground was based on the argument that the Urgenda case should not have been admissible in the first place. Grounds four to eight addressed the climate goal of reducing greenhouse gases by (at least) 25% by the end of 2020. The last ground was based on, inter alia, the separation of powers ('trias politica'): it would not be up to judges to interfere in the political debate on the reduction of greenhouse gas emissions.

After the Advocate General and the Prosecutor General advised to confirm the decision of the The Hague Court of Appeal, the Supreme Court ultimately decided on the issue on Friday 20 December 2019, and dismissed the cassation appeal of the Dutch government. State parties to the European Convention on Human Rights, such as The Netherlands, have a legal duty to protect the life and well-being of its citizens and must therefore take measures against the dangerous effects of climate change. According to the Supreme Court, these obligations are laid down in Articles 2 and 8 ECHR. As indicated by the Supreme Court, there is a large degree of consensus in the scientific and international community on the urgent need for developed countries to reduce greenhouse gas emissions by at least 25% by the end of 2020. The Dutch State did not explain why a lower reduction would be justified and could still lead, on time, to the final target accepted by the Dutch State.

The Dutch State has argued that it is up to politicians to decide on the reduction of greenhouse gas emissions. According to the Supreme Court, however, the Dutch Constitution requires the Dutch courts to apply the provisions of the ECHR. This role of the courts to offer legal protection is an essential element of a democracy under the rule of law. The courts are responsible for guarding the limits of the law. That is what the Court of Appeal has done in this case, according to the Supreme Court. As the The Hague Court of Appeal did not impose the precise measures the Dutch Government had to take to obtain a reduction by 25% of greenhouse gas emissions, it did not violate the principle of the separation of powers ("Politiek domein").Therefore, the Supreme Court ruled that the Court of Appeal was allowed and could decide that the Dutch State is obliged to achieve the 25% reduction by the end of 2020, on account of the risk of dangerous climate change that could also have a serious impact on the rights to life and well-being of residents of the Netherlands.

A precedent for all climate change litigation?

The Urgenda case will probably set an important precedent for similar cases - i.e. cases wherein human rights are invoked to demand more ambitious climate change policy - that are currently pending in Germany, Ireland, France and Belgium, among other countries.

Climate change litigation, however, exists in many shapes and forms. More specifically, there is a trend towards suing polluting companies such as RWE, Total, and the like.

As discussed in our last blog, there exist quite a few hurdles claimants must meet before any of these cases can result in a conviction, including awarding damages for victims of specific harm or loss, related to climate change. The judgment of the Dutch Supreme Court nonetheless demonstrates that authorities can be held to account in case of failure to take appropriate actions in light of the climate goals.

Conclusion

The Urgenda case sets an important precedent for comparable climate change cases, unequivocally confirming that human rights can be invoked to demand more ambitious climate change policy from States.

We will keep you updated on any new developments in the field of climate change litigation.