Urgenda Foundation v. The State of the Netherlands

By Anna Bortolussi

Urgenda brought a lawsuit against the State of the Netherlands, alleging human rights violations from a failure to comply with their duty of care by lacking an adequate policy to reduce GHG emissions. They asked the court to order the government to bring their policies in line with obligations taken at the international level.

Case Information:

Court(s): District Court of the Hague, Court of Appeal, Supreme Court of the Netherlands (Civil Division) 

Dissenting judgement: No

Filing date: 2015

Last Update: 2020

Status: Decided

ISSUES

The Hague District Court 
Whether the Dutch government (the Respondent) owes a duty of care towards the Urgenda Foundation (the Applicant), and therefore, has a corresponding legal obligation to reduce the Netherland’s cumulative greenhouse gas (GHG) emissions. The Applicant at first instance asked the court to order the Dutch government to reduce domestic emissions by as much as 40% (or at least, as little as 25%) – compared to 1990 levels – by the end of 2020.[1]

Court of Appeal (On Appeal)
The Court of Appeal was asked to determine whether the District Court was correct in finding that (i) the Respondent’s target of reducing GHG emissions of 20% by end-2020 is insufficient insofar as it breaches the duty of care that the state holds towards its citizens; and (ii) whether the State can be ordered to adjust the target to 25%. The Dutch government fiercely opposed the District Court’s decision, bringing forward 29 grounds of appeal at this stage.[2]

The Urgenda Foundation asked the court to re-examine whether the District Court was right to reject its standing in the case – as it could not rely on the victimhood status offered by Article 34 of the ECHR – instead asking the court to consider its claim to standing for breaches under Article 2 and 8 ECHR.[3]

The Supreme Court of the Netherlands (On Appeal)
The Dutch government appealed once again, asking the Supreme Court to opine on three key questions: (i) whether the Urgenda Foundation had standing to bring a claim for a breach of Articles 2 and 8 of the European Convention on Human Rights (ECHR); (ii) whether the Dutch State could be bound by the reduction target of 25%, even though such a target is not mandated at EU-level;[4] and (iii) whether the order of the District Court amounted to the creation of legislation (a matter for the government) and was therefore invalid.[5] 

MATERIAL FACTS/BACKGROUND 

Urgenda (Urgent Agenda) is a citizens’ platform involved in developing plans and measures aimed at preventing and mitigating the effects of climate change.[6] Carbon dioxide (CO2) is the main GHG responsible for trapping the heat emitted by the earth, which leads to global warming.[7] By limiting the amount of CO2 emitted in the atmosphere, the risk of reaching a tipping point in global warming can be reduced, alongside the dangers to human life and the environment that are caused by climate change.[8]
The Netherlands ranks 10th in the world for highest per capita CO2 emissions.[9] Up until  2011, the Respondent, in line with the objectives of international treaties and conventions such as those of COP15, set a target for reducing its GHG emissions by  30% by 2020 relative to 1990 levels.[10] However, after 2011 the Dutch  target was adjusted to be in line with the EU target of 20% reduction by 2020. This reduction was driven primarily by political considerations rather than being based on scientific arguments and justifications.[11] 

THE ARGUMENTS OF THE PARTIES

The plaintiff’s arguments:
The Applicant argues that the Dutch climate policy does not meet the duty of care that the Respondent has towards Urgenda and the parties it represents.[12] 
To substantiate their claim, they rely on the following grounds: 

1. The Netherlands is a wealthy and developed country which has profited (and continues to profit) extensively from its GHG emissions. While the country’s cumulative emissions are small compared to other big emitter populations, the per capita emissions, and the resulting obligations taken at an international level, place a responsibility on the Respondent to take precautionary measures to ‘reduce the risk of serious and irreversible damage to human health and the environment.’ [13] [14]
2. Following Article 21 of the Dutch Constitution and provisions enshrined in the ECHR (which the Netherlands has signed and ratified), the Respondent has a positive obligation capable of giving rise to a duty of care under Articles 2 and 8 of the ECHR to protect the lives of the citizens of the Netherlands and their right to home and private life. Given the increase in risk to those rights associated with a GHG reduction target lower than 25%, a metric which has also been evidenced as insufficient by the Intergovernmental Panel on Climate Change (‘IPCC’), the Respondent was alleged to be in breach of their duty of care by limiting their GHG reduction to only 20%.[15] Given the increase in risk associated with a reduction target lower than 25% by end-2020 compared to 1990 levels, which has been regarded as insufficient by the IPCC, the Respondent is in breach of their duty of care by limiting its GHG reduction to only 20%.[16]

Based on the aforementioned grounds, Urgenda claimed that the State should be ordered to limit the joint volume of the annual GHG emissions of the Netherlands, so that these emissions will have been reduced by 40% and at least 25% in 2020 relative to 1990 levels.[17]

The defendant’s arguments:
The Respondent claims that the Netherlands is pursuing an adequate climate policy, on the basis that the 20% reduction target complies with European agreements. They advance the following arguments in support of their claim:

1. Urgenda has partially no cause of action as it claims to be protecting the rights and interests of current and future generations, some of which are based in other countries.[18] 
2. The Netherlands had no legal obligation to achieve the targets set by Urgenda, as it cannot be legally forced to pursue a climate policy that is different from that of the European Union.[19] The Respondent emphasised how Dutch climate policy is composed of both mitigation and adaptation measures and that climate scientists have agreed that different reduction paths are available to meet the duty of care.[20] The Dutch government also argued that, alongside the EU-wide reduction target of lowering emissions of 40% by 2030 relative to 1990 levels, they had established a national commitment of reducing emissions by 49% by 2030.[21] The State asked for these parallel targets to be taken into account alongside the fact that, given that cumulative emissions of the Netherlands are small compared to other countries, the Netherlands increasing its target to 25% alone would be a ‘drop in ocean’ at the global scale.[22] 
3. Lastly, the Respondent argued that affirmation of the lower courts’ judgments would amount to an undue interference with the rule of law and separation of powers by the judiciary, undermining the State’s discretionary power to adopt and implement legislation.[23]

THE JUDGEMENT

District Court 
The District Court in the Hague allowed Urgenda’s claim and ordered that the state of the Netherlands limit the amount of cumulative emissions of GHG to 25% by end-2020 relative to 1990 levels. They advance the following conclusions: 
Duty of careThe District Court found that the Dutch State did not have a legal obligation towards Urgenda as derived from Article 21 of the Dutch Constitution (duty of care on the liveability of the environment), as the provision does not stipulate the manner in which the task should be carried out by the government and this remains to the government’s own discretion.[24] The court also found no legal obligation under Articles 2 and 8 of the ECHR as Urgenda does not have the status of a potential individual victim, following and as required by Article 34 ECHR.[25] 

However, the State of the Netherlands was found to have a duty, following the principle of fairness, to ensure that domestic policies provide benefit to current generations, without placing a disproportionate burden on future generations.[26] It was ruled that the Respondent has a responsibility to be more proactive on climate mitigation given the current consensus in the international community that expeditious action will prevent the most dangerous consequences, alongside the insufficient evidence on the effectiveness of CO2 reduction through carbon capture and storage.[27]

Discretionary power
The State’s discretionary power is not unlimited and in case there is a high risk of consequences from climate change, it has an obligation to protect its citizens by taking appropriate and effective measures.[28] Furthermore, the state itself has failed to argue that it would not be financially possible to meet a more ambitious target and has not supported their decision to reduce the target to 20% with scientific evidence.[29] On this basis, the court concluded that the state acted negligently and unlawfully towards Urgenda by not pursuing a target of 25% reduction in GHG emissions compared to 1990 levels.[30]

Separation of powers
The court found that there is no full separation of powers under Dutch law and that the redistribution of powers is aimed at creating a balance, not a clear-cut divide.[31] The court also found that it is necessary that the actions of political bodies are subject to judicial review and are capable of being assessed by an independent court.[32] Furthermore, the court is not ordering or prohibiting the state from taking specific legislative measures or policies and the state retains full freedom on how to comply with the order.[33] 

Court of Appeal (on appeal)
The court upheld the district court’s decision that the state has to adjust its reduction target for CO2 emissions to 25% by end-2020 relative to 1990 levels, as to have a target that is below 25% is in breach of the duty of care that the State holds towards Urgenda and the parties it represents. 

Articles 2 and 8 ECHR
The Court of Appeal was asked to reasses the District Court decision on whether Urgenda could rely on Articles 2 and 8 of the ECHR, as following article 34 ECHR, public interest claims such as that of Urgenda cannot be brought to the European Court of Human Rights.[34] The Court first emphasised that Article 34 does not give an answer on whether claims of this type can be brought up to domestic courts.[35] Therefore, they turned to Book 3 s.305a of the Dutch Civil Code, which grants individuals who fall under the jurisdiction of the state of the Netherlands with the right to invoke the rights protected in the ECHR, as these have direct effect.[36] 

Unlawfulness of the District Court’s Order
The court agreed with the order of the District Court that the State’s reduction target was unlawful as it was below 25%, which was the minimum required to ensure that the state fulfilled its duty of care and acted preemptively to minimise the real threat of climate change.[37] 

Furthermore, they refuted the State’s argument that courts were not in a position to impose an order to create legislation, on the basis that the District Court’s order was not asking the state to enact a piece of legislation.[38] The State, in fact retains complete freedom on how to comply with the order, many of which do not require creation of legislation.[39]

Supreme Court (on appeal)
The Supreme Court delivered a judgement rejecting the State’s appeal and upholding the District Court and the Court of Appeal’s decision that the State is under an obligation to adjust its target to reduce GHG emissions by 25% by the end of 2020 relative to 1990 levels.[40] 

Please find the full District Court judgement here.Please find the full Court of Appeal judgement here.Please find the full Supreme Court judgement here.For a commentary on the case check out this article. 
Last edited on 22 May 2023; with thanks to the case editor, Ellie Gold.

References:

[1] Urgenda Foundation v. The State of the Netherlands [2015] ??The Hague District Court C/09/456689, para 3.1
[2]The State of the Netherlands, v. Urgenda Foundation [2018] Court of Appeal C/09/456689, para 31
[3] CA, para 32
[4] The State of the Netherlands v. Urgenda Foundation [2020], Supreme Court of the Netherlands C/09/456689, paras 3.3 and 3.4
[5] Supreme Court decision, para 3.5
[6] CA, para 3.1
[7] CA, para 3.3
[8] CA, para 3.6
[9] CA, para 26
[10] CA, para 19
[11] CA, para 20
[12] District Court, para 4.1
[13] CA, para 28
[14] District Court paras 4.1 and 4.79
[15] District Court decision, para 4.36 and CA, para 43
[16] District Court, para 4.65
[17] District Court decision, para 4.1
[18] District Court decision, para 3.3
[19] District Court decision 3.3. and 4.2
[20] District court, para 3.3 and CA para 30
[21] CA, para 30
[22] District Court decision, para 4.79
[23] District Court decision, para 3.3
[24] District Court, para 4.36
[25] District Court, para 4.45
[26] District Court, para 4.66
[27] District Court, para 4.71 – 4.73
[28] District Court, para 4.74
[29] District Court, para 4.70, 4.77 and 4.101
[30] District Court, para 4.93
[31] District Court, para 4.95
[32] District Court, para 4.95
[33] District Court, para 4.101
[34] CA, para 35
[35] CA, para 35
[36] CA, para 36
[37] CA, paras 43, 45, 49 and 53
[38] CA, para 68
[39] CA, para 68
[40] Supreme Court Decision, para 9