By Jonathan Verschuuren - On 9 October 2018, the Dutch Court of Appeal in The Hague rendered its judgment in the Urgenda case.
This case was an appeal from the 2015 decision by the District Court in The Hague. The lower court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy that “only” pursued the reduction targets that were imposed upon the Netherlands by EU-law for 2020: a 21% reduction for sectors covered by the EU Emissions Trading Scheme (basically large industry and power stations), and a 16% reduction for non-EU ETS sectors (such as transport and agriculture).
Although the District Court did not find that the State did directly breached its legal obligations under a range of legal instruments, such as the UNFCCC, Kyoto Protocol, various EU climate change instruments, and the European Convention on Human Rights, it found that the State breached its duty of care towards its citizens, which, under Dutch tort law, constitutes an unlawful act. The District Court ordered the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the 1990 level.
Urgenda, the NGO that initiated the case, is a foundation established in 2008 to stimulate and accelerate the transition processes to a more sustainable society, beginning in the Netherlands, through legal action. More than 800 individual citizens joined the suit, so the case was lodged by Urgenda acting on its own behalf as well as in its capacity as representative of these individuals. Under Dutch tort law, NGOs are allowed to initiate public interest cases.
The government of the Netherlands appealed the case mainly because it objected to the interference by the Court when deference should be given to the Parliament.
Climate change impacts enjoyment of human rights: courts have to intervene
In another sensational judgment issued on 9 October 2018, the Court of Appeal rejected all of the State’s objections in firm and straightforward language. The Court of Appeal stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention on Human Rights (Articles 2 and 8 respectively) will be infringed by the effects of climate change. The Court of Appeal, like the District Court in 2015, followed IPCC reports and resolutions adopted on all UNFCCC COPs from the past decade, which all indicate that the CO2 concentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit to reach the 1.5 degree target. The Court of Appeal briefly summarized the near-certain impacts of the global average temperatures reaching 2 degrees Celsius (No. 44).
The State is obliged, under this human rights treaty, to take protective action. The Court, however, concludes that until now, the State has done too little to prevent dangerous climate change and has done too little, at least in the short term (end of 2020), to catch up. Targets for 2030 and beyond do not take away from the imminent dangerous situation, which requires intervention now. (No. 71). It found that the State failed to fulfil its duty of care pursuant to Articles 2 and 8 of the European Convention on Human Rights by not trying to reduce emissions by at least 25% by the end of 2020.
The Court of Appeal confirmed the judgment by the District Court that, when asked by individuals or NGOs, courts are obliged to test government actions (including policies) against human rights; thus, there is no infringement of the principle of separation of powers. On the contrary, testing government actions against human rights belongs to the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss which policy interventions will achieve aim, avoiding interference with policy-making.
In clear language, the Court of Appeal rejected all other objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones.
Uncertainty and precautionary principle
The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. The Court of Appeal invoked the precautionary principle and stressed its importance, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tᾰtar decision of the European Court of Human Rights). Contrary to the State’s argument, the uncertainty (especially with regard to the existence of dangerous tipping points) requires the State to have a proactive and effective climate policy (No. 73).
Many other cases, particularly in the United States, have been unsuccessful because of a lack of causal link between the government policy and climate change impacts. In this case, the Court of Appeal argues that causality is less of an issue as the claim is for an order to implement a policy not damages. In that case, “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case” (No. 64).
Relationship to EU policies
The State argued that it has to follow and is following EU laws and policies and cannot be required to do more, as EU climate laws have for mostly been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction – more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy than the EU harms Dutch companies. (Nos. 57-58)
Relationship to adaptation measures
According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Court of Appeal considered it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)
Interdependence policies other countries
The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Court of Appeal rejected this by referring to the special position of the Netherlands as a rich, developed state that has gained much of its wealth through extensive use of fossil fuels. It added: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the president of the Court of Appeal announced the latter sentence!
2020: Short notice
The State argued that drastic policy changes, such as the one ordered by the Court in first instance, are unattainable; we need more time. The court rejected this argument, referring to the fact that the State was aware of the IPCC reports dating back to 2007 and originally had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!
Role of future generations
In the 2015 Court judgment, the court indicated that the State acts unlawfully toward future generations. In recent judgment, the Court of Appeal does not repeat this but instead argues that human rights infringements are already imminent for current generations, so there is no need to address whether legal obligation toward future generations exist. (No. 37)
We will engineer ourselves out of the problems
The State argued that its policy goals partly rely on climate engineering (“negative emissions technologies”) through which CO2 can later be removed from the atmosphere. The court, however, is not willing to take these future technologies into account: “the option to remove CO2 from the atmosphere with certain technologies in the future is highly uncertain [… and] the climate scenarios based on such technologies are not very realistic considering the current state of affairs”(No. 49).
The Dutch Court of Appeal followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. The first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, further boost global climate litigation.
Professor of International and European Environmental Law at Tilburg University, the Netherlands and WCEL Member
 Urgenda Foundation v The State of The Netherlands, District Court of The Hague, 24 June 2015, case C/09/456689 / HA ZA 13-1396 (English translation), available online https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196.
 See extensively Berthy van den Broek, Liesbeth Enneking, Public Interest Litigation in the Netherlands. A Multidimensional Take on the Promotion of Environmental Interests by Private Parties through the Courts, 2014 Utrecht Law Review 10:3, available online http://www.utrechtlawreview.org/index.php/ulr/article/view/285.
 The State of The Netherlands v Urgenda Foundation, The Hague Court of Appeal, 9 October 2018, case 200.178.245/01 (English translation), available online https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2018:2610.
 Here, Dutch law goes beyond what is required by the ECHR as under case law by the European Court of Human Rights (ECtHR) environmental NGOs cannot invoke the human rights in an attempt to defend the environment as a general interest. According to the ECtHR, NGOs are only allowed to represent the individual interests of their members in case their members are potential victims of human right infringements. See extensively Jonathan Verschuuren, Contribution of the case law of the European Court of Human Rights to sustainable development in Europe, in: W. Scholtz and J. Verschuuren (eds.), Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development (Edward Elgar 2015) 363, at 371-372.