by Carla Fetcas
In 2015, an unprecedented climate litigation case (Urgenda vs the Netherlands) was decided by a Dutch District Court. The State of the Netherlands was ordered to reduce its greenhouse gas emissions by 2020 by at least 25% as compared to the level of 1990 . The decision was appealed in 2018, and the State’s objections were later rejected by the Court of Appeal in The Hague and the Dutch Supreme Court . While the District Court decided based on hazardous negligence, the Court of Appeal did so by referring to the positive obligation to protect Human Rights [2;1]. Throughout the decision-making, the courts encountered considerable obstacles, such as the principle of causation and the balance of powers .
Dutch tort law provides a possibility for NGOs to initiate cases that are of public interest . In this case, the plaintiff was the Urgenda foundation (with more than 800 individual co-plaintiffs), acting on its own behalf but also on the behalf of present and future generations . In 2012, Urgenda had requested the State of the Netherlands to aim at a national climate change mitigation target that included a 40% reduction by 2020 as compared to 1990, which the State refused; Urgenda subsequently lodged this case with the court . From the following, it will become evident that this case is abstract in nature as it doesn’t involve particular risks or specific activities; it does, however, encompass a human rights element . For scientific reference, the courts followed IPCC reports and UNFCCC COPs resolutions in their reasoning .
The legal question in this case was whether the Netherlands acted in conformity with the law in its mitigation targets. The country had merely pursued the EU’s mitigation targets set for the end of 2020 in its Emissions Trading Scheme but had gone no further .
Under Dutch tort law, an action or inaction is unlawful either when it violates a written legal norm, or when, although not contrary to a legal norm, it is not compliant with the duty of care . In this case, it was found that, whilst not breaching the law – even when considering many legal acts (such as the UNFCCC, the Kyoto Protocol, the ECHR) – the Dutch state did have a standard of due care towards its citizens that it had to meet but hadn’t . To identify what the duty of due care consists of in this case, the Court relied on various rules (binding as well as non-binding) and principles like the precautionary principle .
While seeking a solution, the District Court faced two major obstacles: Firstly, there was the principle of causation which caused controversy because the Netherlands only contributed to a relatively small extent to global climate change. Thus, the question was why and how it should be made liable for damage made to Dutch citizens caused by climate change .
This question was solved by using joint liability case law: Liability of one actor cannot be negated, even if he is only marginally contributing to the damage . The Court further pointed out that the Dutch emissions are among the highest in the world in per capita terms, which is why the Netherlands – especially in the position of a developed state and an Annex I country – must reduce its emissions in an over-proportionate way .
The second obstacle was the separation of powers. Due to this principle, the courts are not allowed to take on political tasks, but specifying climate protection goals is typically one such task . The Court, however, only set the required outcome, namely a 25% reduction of emissions by 2020, but it didn’t impose measures on how to achieve it, and by this, did not interfere with policymaking .
In this regard, the Court also stated that, although a judge has no democratic legitimacy, its power is still very much based on legislation that has been democratically established, hence its authority to legal dispute settlement . It also has the prerogative to provide citizens with legal protection against their government and its authorities, which is relevant in this case, where the citizens must be legally protected against the state’s negligence .
The State contested the decision with multiple objections. Both the District Court and the Court of Appeal came to the conclusion that the State had not managed to fulfill its duty of care. However, the former did so by referring to the Dutch Civil Code while the latter referred to Articles 2 and 8 of the European Convention on Human Rights (ECHR).These articles refer to the State’s duty of care in protecting the right to life and the right to private and family life. The case was thus turned into a human rights case .
What followed were, among other happenings, the Supreme Court decision on this matter (2019), which upheld what was previously decided, the Dutch Climate Act in 2019, and the “People’s Climate Case” (EU Court of Justice) .
In conclusion, what Urgenda showed is that there is a need for a more developed and elaborate methodology on how to deal with the mitigation obligations that general treaties (regarding, for example, human rights, environmental law, and tort law) entail for states. It also shows the need for more climate change lawsuits to be framed by human rights law [2;3].
 Jonathan Verschuuren, 2019, The State of the Netherlands v Urgenda Foundation: The Hague Court of Appeal upholds judgement requiring the Netherlands to further reduce its greenhouse gas emissions, RECIEL 28 (1), https://doi.org/10.1111/reel.12280.
 Benoit Mayer, 2019, The State of the Netherlands v. Urgenda Foundation: Ruling of the Court of Appeal of The Hague, Transnational Environmental Law 8 (1), https://doi.org/10.1017/S2047102519000049.
 Ingrid Leijten, 2019, Human rights v. Insufficient climate action: The Urgenda case, Netherlands Quarterly of Human Rights 37 (2), https://doi.org/10.1177/0924051919844375.
 Jonathan Verschuuren, 2018, Urgenda Climate Change Judgement Survives Appeal in the Netherlands, Tilburg University, https://blog.uvt.nl/environmentallaw/?p=354, accessed on 14th Feb. 2022.
 Jonathan Verschuuren, 2015, Spectacular judgment by Dutch Court in climate change case, Tilburg University, https://blog.uvt.nl/environmentallaw/?p=109, accessed on 14th Feb. 2022.