On 9th October 2018, The Hague Court of Appeal handed down its judgment in a long running appeal brought by the Dutch government against a judgment (dated 24th June 2015) of The Hague District Court. The earlier judgment became famous across the world, because it was the first of this nature in the field of climate change.
Following a claim made by Urgenda (Urgent Agenda – a pressure group) the lower court ordered the Netherland’s government by end of 2020 to achieve a reduction in the (cumulative) volume of greenhouse gas emissions (emitted in the Netherlands), of at least 25% (relative to 1990 emissions). The appeal by the Netherlands’ government was so broad the Court of Appeal had to “reassess the dispute in its entirety” (save for one proviso). Nonetheless, it was comprehensively rejected.
Emissions in the Netherlands
The Court of Appeal went through various current climate change predictions and estimated emissions in the Netherlands. It recited global, EU and Dutch legal frameworks relating to climate change, including recent movements in Dutch national level emission target reductions compared to EU targets. The national target for 2020 was set at 30% reduction but subsequently was reduced to 20% to match the EU target. Notably, the Dutch national target for 2030 has been set at 49%, being well above the EU target of 40% for 2030.
Climate change science per se was not contested. The Court did not find it difficult to hold that climate change is a severe problem and one which has been known by the Dutch government for several years. All concerned acknowledged that Climate Change was a global problem and that emissions reduction is a necessity.
The position of the Netherlands in terms of global emissions also was examined. It was acknowledged that the government in the Netherlands could only intervene in emissions from the Netherlands and that globally (in absolute terms) such Dutch emissions are small. On the other hand, whilst the Netherlands is currently ranked 34th of 208 countries in terms of emissions, of the 33 countries with higher emissions only 9 have higher emissions per capita (and none of those nine is another EU Member State).
Articles 2 and 8 European Convention on Human Rights
The claims of Urgenda were made under Article 2 (right to life – a positive obligation on the state to protect life) and Article 8 (right to family life – an obligation to protect the right to home and private life). The Court examined whether there was a real and imminent threat that would require the State to take precautionary measures. This is what the Court said on this point: “….the Court believes that it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life. As has been considered above by the Court, it follows from Articles 2 and 8 ECHR that the State has a duty to protect against this real threat”.
Government’s grounds of appeal
We do not cover all of these because they were too many. Instead, we look at a few below.
An aspect which strikes us is how many of the Government’s arguments appear more suited to political or lay arenas, rather than a court of law. Ultimately, as will be seen below, some of these arguments were undermined by a lack of evidence and, of course, evidence is major feature in any court case.
- The EU requirement is -20% by 2020. The Netherlands should not be ordered to cut deeper (-25%).
- The EU Emissions Trading Scheme (“ETS”) prevents the Netherlands taking further measures to reduce emissions.
- The “level playing field” and companies will move production out of the Netherlands to other countries with less stringent emission obligations.
- Look at adaptation and mitigation measures together
- Dutch emissions: globally small
- Separation of powers
- Urgenda cannot act on behalf of future generations of Dutch nationals, nor current and future generations of foreigners (in the Netherlands).
Comprehensive outcome
This was a long awaited appeal decision. There was little certainty as to which way the Court of Appeal might lean. In the end, it comprehensively held against the Dutch government. This Court could not be clearer that in this instance the Dutch government “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 of 2020, and that the State should reduce emissions by at least 25% by end of 2020”.
Comment
Perhaps the judgment will be appealed further, we do not know. However as it stands, the many arguments presented by the government were resoundingly rejected by this court. It is a pity that many of the arguments were quasi political or lay in nature, but even so it was good to see them judicially considered.
The Courts in the Netherlands have now decided twice, that the EU’s target of 20% emissions reduction by 2020 is not good enough. Naturally the question arises whether other Member States can rely on this target. The Court of Appeal uttered a phrase which we suspect may be quoted many times in time to come: “Neither can the State hide behind the reduction target of 20% by 2020 at the EU level”.
Finally it is to be noted that this decision was made without reference to the IPCC’s warnings in its recent special report on the impacts of global warming of 1.5 °C. We suspect that if the Court was to have taken note of this special report, it would only have supported the decision which it took.
Social Media cookies collect information about you sharing information from our website via social media tools, or analytics to understand your browsing between social media tools or our Social Media campaigns and our own websites. We do this to optimise the mix of channels to provide you with our content. Details concerning the tools in use are in our Privacy Notice.