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The Dutch Supreme Court orders the Netherlands to reduce greenhouse gas emissions by 2020

Volterra Fietta Client Alert
17 January 2020

On 20 December 2019, the Dutch Supreme Court ordered the Dutch State to reduce greenhouse gas emissions by 25%, compared to 1990 levels, by the end of 2020.  This week, the Dutch judiciary published the English translation of the Dutch Supreme Court’s decision.

The Dutch Supreme Court’s decision is based on the European Convention on Human Rights (the “ECHR”) and the United Nations Framework Convention on Climate Change (the “UN Climate Change Convention”).  The Dutch Supreme Court held that the Dutch State is obligated to reduce greenhouse gas emissions to protect Dutch citizens’ right to life and their right to respect for private and family life (Article 2 and Article 8 of the ECHR).  The Dutch Supreme Court ruled that the interpretation of these human rights obligations must take into account the international and scientific consensus that, inter alia, the Netherlands must reduce its emissions by 25% by 2020.  That consensus is expressed by the UN Climate Change Convention’s Conference of State Parties (the “COP”) and in the 2007 Fourth Assessment Report of the Intergovernmental Panel on Climate Change (the “AR4”).

This case marks the first time that a State has been ordered by its courts to take action against climate change.

A landmark ruling for climate change litigation

The Dutch Supreme Court’s decision is a landmark ruling for climate change litigation.  It establishes that climate change is a human rights issue.  It also confirms that each State has an individual responsibility to reduce greenhouse gas emissions.

The importance of this decision for climate change as a human rights issue is twofold.  First, the decision confirms that climate change is a threat to the respect for human rights, against which States should protect their citizens.  Second, the decision, relying on international law instruments and scientific reports, specified the exact emissions reduction the Dutch State must achieve in order to protect human rights.

The case is also important in that it confirms that each State carries an individual responsibility for worldwide issues such as climate change.  In this context, the Dutch Supreme Court emphasised that, in line with international law, “each country is . . . responsible for its own share”.

The United Nations (the “UN”) has welcomed the Dutch Supreme Court’s decision.  The UN special rapporteur on human rights and the environment, David Boyed, reportedly said that it was “the most important climate change court decision in the world so far.”  In addition, the UN High Commissioner for Human Rights, Michelle Bache, has applauded the decision, calling it “vitally important”.

The Dutch Supreme Court’s decision and background

The Dutch Supreme Court held that climate change, caused by the emission of greenhouse gases, constitutes a serious risk to the lives and well-being of Dutch residents.  The Dutch State must take appropriate measures to protect against such risk to the right to life and the right to respect for private and family life (Article 2 and Article 8 of the ECHR).

The Dutch Supreme Court concluded that in order to effectively protect these human rights, the Dutch State must achieve a 25% reduction in greenhouse gas emissions, compared to 1990 levels, by the end of 2020.  The Dutch Supreme Court established this specific obligation by interpreting the ECHR in light of the international and scientific consensus on the necessary reduction of greenhouse gas emissions required by the Netherlands.  In this respect, the Dutch Supreme Court considered the AR4 and the outcome of several COPs.  Specifically, it relied on calls for, inter alia, the Netherlands to reduce its emissions by 25-40% included in the 2007 Bali Action Plan as well as at the 2010 Cancún and 2012 Doha COPs.  Interestingly, the Court referred to, but did not apply, the lower 20% reduction rate for the European Union in its 2010 Cancún pledge and in the (not yet in force) 2012 Doha amendment to the Kyoto Protocol.  The Court further considered that a reduction of 25% is in line with national reduction targets set by the Dutch government previously for 2020 and currently for 2030, 2050 and 2100.

The Dutch Supreme Court also held that each State has its own individual responsibility to take action against climate change.  It relied on several international law instruments to establish this point, including the UN Climate Change Convention, the Articles on the Responsibility of States for Internationally Wrongful Acts, and the no-harm principle.  The Dutch Supreme Court set aside the Dutch State’s argument that a reduction in emissions in the Netherlands would not have a significant effect on global levels.  It held that this argument does not absolve the Dutch State from its individual responsibility to reduce greenhouse gas emission from its territory, in accordance with its share.  Neither does the argument that other States are not complying with their individual responsibility exonerate the Dutch State.

In addition, the Dutch Supreme Court rejected the Dutch State’s objection that the case is inadmissible as it amounts to an order to legislate and forms a political question outside the judicial realm.

The Dutch Supreme Court’s decision is the third time the Dutch courts have ruled against the Dutch State in this case.  First, in 2015,  The Hague District Court ordered the State to reduce greenhouse gas emissions by 25% by 2020.  In 2018,  The Hague Court of Appeal came to the same conclusion, albeit by different means.  The Dutch Supreme Court has now, in cassation, upheld that Court of Appeal judgment.  The Dutch Supreme Court thereby followed the independent advice given by the Dutch Advocate General and the Procurator General in their Advisory Opinion of 13 September 2019.  The Dutch Supreme Court’s decision is final and legally binding.  The case is also known as the Urgenda Climate Case, after the Dutch NGO Urgenda, which filed the suit.

Climate change litigation world wide

The case has inspired climate change litigation worldwide.  Several climate change cases have been brought against States before national and international courts around the world.  For example, in Belgium, Canada (here and here), Colombia, France, Ireland, Switzerland, the United States, New Zealand, Pakistan, the United Kingdom, Germany, and India as well as against the EU before the European Court of Justice.  The Dutch Supreme Court’s decision is not binding outside the Netherlands.  Nevertheless, the decision could have influence outside the Netherlands, in particular in States party to the ECHR.

What’s next?

For the Netherlands, it is uncertain what the Dutch Supreme Court’s decision will mean in practical terms.  The Dutch State will fail to achieve the ordered reduction in greenhouse gas emissions unless it takes additional measures.  The Dutch government has said that it will take such additional measures to the extent possible, but it has not yet indicated what specific measures are being considered.  The Dutch Minister of Economic Affairs and Climate Policy announced that the Dutch government will issue a full response in January.

Worldwide, it is likely that the Dutch Supreme Court’s decision will lead to new cases seeking climate change measures against States.  In particular, such cases may be filed against Contracting Parties to the ECHR on the basis of Articles 2 and 8 of the ECHR.  It remains to be seen whether the courts of other States will agree with the Dutch courts’ interpretation of the ECHR and whether they will deem the matter a political question not to be determined by the judiciary, but rather to be left to the legislative powers of government.  The issue could potentially inspire a suit before the European Court of Human Rights for violation of Article 2 and Article 8 of the ECHR or a submission to the Human Rights Committee for violation of the equivalent human rights under Article 6(1) and Article 17(1) of the International Covenant on Civil and Political Rights.

In addition, companies could increasingly face suits holding them responsible for climate change.  Such claims could seek, for example, the costs of climate change adaptation, the improved disclosure of climate risk to investors, or the incorporation of climate risk into investment decisions.  In particular, energy and petrochemical companies could be increasingly targeted.

For further information about these developments and other issues related to climate change litigation, please contact Robert Volterra (Robert.Volterra@volterrafietta.com), Graham Coop (Graham.Coop@volterrafietta.com) or Florentine Vos (Florentine.Vos@volterrafietta.com).