On September 23, the Dutch Government appealed a decision* of the District Court in The Hague that obliges the Dutch State to reduce its greenhouse gas (“GHG”) emissions by at least 25%, instead of the currently envisaged 17%, compared to 1990 levels.  The decision is unique in its kind in Europe: it forces a government to change its policies in pursuit of more ambitious climate change targets on the basis of the State’s “duty of care.”  The ruling comes at a time where NGOs in Europe are becoming increasingly active in pressuring governments to tighten environmental regulations.

Background

The European Emissions Trading Scheme (“ETS”) establishes EU-wide GHG emission reduction targets for 2020.  All industrial sectors covered by the ETS Directive must reduce their emissions by 21% compared to 2005 levels.   Sectors not covered by the ETS, such as buildings, agriculture and transport, (i.e., sectors covered by the Effort Sharing Decision) must achieve a reduction of 16% compared to 2005 levels.

These EU targets translate – roughly speaking – into a 14-17% GHG emission reduction target for The Netherlands by 2020 compared to 1990 levels.  In line with this target, the current Dutch climate policies are expected to achieve a 17% GHG emission reduction by 2020.  This is considered a fact in the District Court ruling, and is not disputed by either party.

Urgenda vs. Dutch State: the Decision

The Urgenda Foundation, a Dutch citizens platform promoting sustainability, asked the District Court to declare that the Dutch State is acting unlawfully because its policies will not achieve a reduction of GHG emissions of “40%, or in any case at least 25%” by 2020 compared to 1990, and to order the government to achieve such a reduction.  These numbers are based on reports of the Intergovernmental Panel on Climate Change (“IPCC”) that advise on the need to reduce emissions by at least 25% and preferably up to 40% by 2020 to limit the increase of global temperature to no more than two degrees.

Duty of Care

 The central concept in the Court’s legal reasoning is the Dutch State’s “duty of care.”  The Court held that the State has such obligation, based on the Dutch Constitution and an analogous application of the doctrine of “hazardous negligence” (in Dutch “gevaarzetting”).  This legal doctrine originates in a Dutch court decision that held that employers have a responsibility to take the necessary measures to prevent danger.

International Law: No Direct Effect but Interpretation Tool

The Court extensively refers to international and European environmental rules and standards, including IPCC reports, the UN Framework Convention on Climate Change, the no harm principle (which is the second principle under the Rio Declaration on Environment and Development), the precautionary principle, and article 191 of the Treaty on the Functioning of the European Union (TFEU).  While the Court acknowledges that Urgenda cannot directly rely on these principles and rules, it holds that they serve as a tool to interpret the “duty of care” obligation of the Dutch State.  In other words, according to the Court, these principles serve as a frame of reference to establish whether the Dutch State has a “duty of care” in the context of climate change policies.

After a lengthy analysis of these international norms and “current climate science,” including IPCC reports, the Court holds that mitigation is necessary, and that, from a cost-effectiveness perspective it is “better to act adequately now than to postpone actions.”  On that basis, the Court concludes that the State has a duty of care “to mitigate as quickly and as much as possible.”

Government Discretion?  

 The Court acknowledges that, within its duty of care, the Dutch government has discretion as to how it wants to achieve its policy objectives.  However, it considers that this discretion is limited in view of the “particular danger of climate change.”

Two points are particularly interesting:

First, the Court dismisses the State’s argument that increased Dutch efforts make little difference on a global scale as Dutch emissions only account for 0.5% of emissions worldwide.  Inspired by the international environmental law principle of “ common but differentiated responsibilities”, the Court holds that the Netherlands have a duty to take significant measures to mitigate climate change.

Second, the Court also dismisses the State’s argument that the Netherlands cannot go beyond the EU ETS reduction target of 21% compared to 2005 levels.  According to the Court, the ETS does not prevent EU Member States from pursuing higher GHG emission cuts, and reminds the Dutch State that these cuts can also be achieved through measures outside the ETS scheme.  By way of example, the Court refers to renewable energy measures in Denmark and the “carbon price floor tax” in the United Kingdom.   In view of the government’s existing yet limited discretion, the Court decides to impose an obligation to “only” achieve a 25% emission reduction by 2020.  It does so based on the “scientifically accepted norm” of a necessary reduction of at least 25%.

Separation vs. Balance of Powers

 The Dutch State (and several commentators) have argued that the Court is violating the separation of powers between the executive, the judiciary and the legislative branch of government by imposing policy objectives on the executive.  The Court dismisses this in no more than a few paragraphs.  It holds that in the Netherlands, there is a “balance” rather than a “separation” of powers, and therefore, courts have a duty to keep the executive in check, while respecting its discretionary powers.  According to the Court, its ruling does just that, because it “only” imposes a reduction target of 25% and allows the State to choose the measures for reaching that target.

Trend in Europe?

 The Urgenda ruling embodies a trend in Europe whereby NGOs are becoming more knowledgeable and active when it comes to using litigation in order to influence climate change and environmental policies.  For example, recently, the UK Supreme Court (see press summary here) obliged the UK government to adopt air quality plans based on a decision of the Court of Justice in the EU (“CJEU”) following a reference for a preliminary ruling in a case initiated by the NGO ClientEarth.

In April 2015, the NGO ‘Klimaatzaak’ brought a case against the Belgian government, claiming higher GHG emission cuts in Belgium (Klimaatzaak’s website about the case, which also contains the full summons,  is accessible here (in Dutch)).  The claimant’s arguments are similar to those of Urgenda, and it will be interesting to see if and on what basis the court will force the Belgian government to amend its climate change policies.

Next Steps

 On 23 September 2015, the Dutch government appealed the decision.  However, it has also announced that it will start executing the Court’s ruling as the appeal has no suspensory effect.

*An English translation of the judgment is available here.