The Urgenda Foundation sued the Dutch government on behalf of 900 Dutch citizens for not having ambitious enough efforts to reduce greenhouse gas (GHG) emissions. Within the legal context of the United Nations Framework Convention on Climate Change, including the Kyoto Protocol and Paris Agreement, and European Union and Dutch law, Urgenda claimed that the Dutch government’s failure to commit to a greater emission reduction by the end of 2020, was unlawful because it violates proper social conduct and is contrary to the duty of care required of the Dutch Civil Code and Articles 2 and 8 of the European Convention on Human Rights (ECHR). The Dutch government argued that it adheres to convention obligations and agreements and, acknowledging the climate problem, has adopted and proposed policies that will reduce emissions between 19-27% by 2020. The Hague District Court ruled in favour of Urgenda, ordering the government to limit GHG emissions to at least 25% below the 1990 levels by 2020. The Dutch government appealed the decision on 29 grounds, including, inter alia, inadmissibility, the asserted unlawfulness, the severity of climate change, and the trias politica role of the courts. The Hague Court of Appeal dismissed the appeal, affirming that the Dutch government has done too little to prevent dangerous climate change and upholding the District Court’s judgment. The Dutch government has since filed for appeal to the Supreme Court.
Environmental Legal Questions:
- Does the Urgenda Foundation have standing? The Dutch Civil Code provides for class actions of interest groups. As individuals who fall under the State’s jurisdiction may invoke Articles 2 and 8 ECHR in court, which have direct effect, Urgenda may also do so on their behalf under this provision. Dutch law requires specific criteria to be met to file a class action. A group of people must be represented by a foundation that has a mission relevant to the interests of the claim. The Court found Urgenda to have clear and sufficient interests in its claim.
- How severe is climate change? The Court recognized, inter alia, the direct link between anthropogenic GHGs and global warming, and that temperatures higher than 2°C will cause numerous serious consequences, resulting in a real threat that the current generation of citizens will be confronted with loss of life (Article 2 ECHR) and/or disruption of family (Article 8 ECHR).
- Was the Dutch government acting unlawfully? The Court reviewed, inter alia, UN Environment warnings, conclusions of the Intergovernmental Panel on Climate Change, international conventions and laws, and Dutch law to conclude that a reduction obligation of at least 25% by the end of 2020 is in line with the government’s duty of care. The Dutch government’s failure to pursue a more ambitious reduction is therefore unlawful, in contravention of its duty of care under Article 2 and 8 ECHR.
- Does the Dutch government have a “margin of appreciation” in reducing emissions? The Court found that the government does have a margin in choosing the measures it takes to achieve the target of a 25% reduction by 2020, but not in the percentage of reduction. The main point of defense was that the Dutch government’s aim was between 19-27%; however, the Court concluded that this margin, which resulted in a real chance that reduction will be substantially lower than 25%, is uncertain and unacceptable.
- Do Dutch courts have jurisdiction to hear claims based on ECHR? The Court is obliged to apply provisions with direct effect from treaties that the Netherlands is Party to, including Article 2 and 8 ECHR. Such provisions form part of the Dutch jurisdiction and take precedence over Dutch laws deviating from them. Moreover, the Dutch government has a positive obligation to protect the lives of citizens within its jurisdiction under the ECHR and, if knowing of real and imminent threats, must take precautionary measures to prevent infringements as far as possible.