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 Court looked at what had been done to date in terms of emissions reductions, the desirability of early and interim efforts to effect reductions compared to deeper and faster cuts in later years, and uncertainty over future technologies and pathways to reductions.
The Court was influenced by the Netherland's reduction target, set prior to 2011, which was 30% by 2020. It also noted that in October 2009 a State Department stated that a 25 – 40% reduction was necessary "... to stay on a credible target to keep the 2 degrees objective within reach".
From this the Court held that "No other conclusion can be drawn from this than that the State itself was convinced that a scenario in which less than that would be reduced by 2020 was not feasible". The Court made the point that the government did not provide reasons or evidence why a reduction of only 20% (the EU level) should be regarded as credible.
- The EU Emissions Trading Scheme ("ETS") prevents the Netherlands taking further measures to reduce emissions
The government's argument was to the effect that as the ETS emissions cap applies to the ETS sector as a whole across the EU, fewer emissions in the Netherlands would simply create room for higher emissions elsewhere in the EU. This it argued would make higher Dutch measures pointless. The Court rejected this at law and on the facts. EU Member States are legally entitled to take more ambitious measures. It was also a false assumption to make that other EU Member States would take advantage, as the other Member States have their own obligations. Currently Denmark, France, Germany, Sweden and the United Kingdom were far ahead of the Netherlands in emissions reduction.
- The "level playing field" and companies will move production out of the Netherlands to other countries with less stringent emission obligations
The government was concerned that industry in the Netherlands would feel penalised and there would not be a level playing field with other nations. These arguments were rejected. The Court not only made the point that the government did not provide any evidence to substantiate the arguments but also that the arguments clearly did not sit comfortably with the Netherland's higher 2030 target reduction of 49% compared to 40% for the EU.
- Look at adaptation and mitigation measures together
The Government argued that adaptation measures should also be taken into account. Mitigation measures (emissions reduction would be a mitigation measure) should not looked at in isolation. The Court recognised the importance of adaptation measures but rejected the argument because the government did not evidence its argument: "So while it is certainly logical for the State to also take adaptation measures, this does not take away from its obligations to reduce CO2 emissions quicker than it has planned".
- Dutch emissions: globally small
The government also saught to argue, albeit the argument is not very clear, that because the Dutch emissions were relatively small in global absolute terms (albeit they are high on a per capita basis, see above), the Court should be reluctant to impose an order when, globally, so much will depend on negotiation with other countries. The Court did not accept this argument as a mechanism releasing the Dutch government from taking measures in its own territory.
- Separation of powers
Dealing with climate change is a global and complicated issue. The government argued that the policies and measures to deal with the problem were the reserve of the democratically elected government. Further, the government also argued that the lower Court's order effectively amounted to an order to create legislation. The Court of Appeal rejected this. The Dutch State was violating human rights, and therefore the Court was perfectly entitled to intervene. Also, the order provided the State with sufficient room to decide how to comply. The government failed to evidence how the order would oblige it to create legislation.
- Urgenda cannot act on behalf of future generations of Dutch nationals, nor current and future generations of foreigners (in the Netherlands)
The Court of Appeal did not think it needed to address this argument. Urgenda's claim was admissible on behalf of the current generation of Dutch nationals and others subject to the Dutch jurisdiction. The Court went on to say "After all, it is without doubt plausible that the current generation of Dutch nationals, in particular but not limited to the younger individuals in this group, will have to deal with the adverse effects of climate change in their lifetime if global emissions of greenhouse gases are not adequately reduced".
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".
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.