The Dutch climate case Urgenda on the agenda of the 18th Annual Conference on European Tort Law

Each year in the week after Easter the most significant developments of the past year in the field of tort law in Europe are discussed at the Annual Conference on European Tort Law, organized by the European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law (ETL). This conference welcomes practitioners and academics not only from Europe, but from all over the world. Experts from across Europe present the highlights of their contributions to the Yearbooks European Tort Law, which are published yearly. UCALL members Jessy Emaus and myself, represent the Netherlands. At the 18th Annual Conference on European Tort Law that took place in Vienna at the Austrian Supreme Court/Palace of Justice on 25-27 April 2018, I spoke about the case of 2018 from our country that has received most attention: the historic climate case Urgenda versus the Dutch State, putting climate change at the top of everyone’s agenda.

Three years ago at the 15^th Annual Conference on European Tort Law I reported on the Dutch tort law case Urgenda versus the Dutch State that became worldwide breaking news, covered by The Guardian, the New York Times, Al Jazeera, Le Monde, BBC, The Economist and many more. Last week, at the 18^th Annual Conference, I presented the participants of this conference with the sequel of this case.

Dutch citizens sued their government over inaction on climate change and they won; twice! In the Urgenda case, in 2015, the Dutch district court in The Hague legally imposed the Dutch State to take better precautions against climate change (Rb. Den Haag 24-06-2015). It was ruled that the State has done too little to prevent a dangerous climate change and is doing too little to catch up, at least in the short term. The court ordered the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year 1990.

The meaning of this Dutch case for climate change policy and litigation is since then much discussed, in the Netherlands but also abroad. It was the world’s first successful climate litigation case. Around the world, one wondered, would Urgenda survive the appeal? The appeal – at The Hague Court of Appeal – took place in 2018 and was therefore my topic choice for this years’ Conference looking back at the major developments in tort law last year. Against several odds, the court of appeal decided to uphold the initial verdict. The appeal court rejected the appeal of the Netherlands (Gerechtshof Den Haag 9-10-2018).

There were believers and non-believers. The rightful place of activism is not the courtroom, but the House of Parliament, so the non-believers say. It has been argued that the court did not respect the constitutional principle of separation of powers. The court of appeal was urged to put the government back in charge, and restore the balance of powers. But on the other hand, the Urgenda ruling has also been applauded. Many consider it a major victory for the climate and for future generations. States are meant to protect their citizens and if politicians will not do this of their own accord, then the courts are there to help. The Hague Court of Appeal agreed, shared Urgenda’s view on this matter and Urgenda won again.

The Court of Appeal stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention on Human Rights in its Articles 2 and 8 will be infringed by the effects of climate change. Under this human rights convention, the State is obliged to take protective action. The Court of Appeal is of the opinion that the State fails to fulfil its duty of care pursuant to articles 2 and 8 of the European Convention of Human Rights by not wanting to reduce emissions by at least 25% by the end of 2020. A reduction of 25% should be considered a minimum. So the Court concludes that the State is acting unlawfully by failing to pursue a more ambitious reduction and orders the State to reduce CO2 emissions by at least 25% by the end of 2020.

Although the Court of Appeal reached the same conclusions as the district court, the substantiation for the decision was somewhat different. Whereas the district court based its decision on the general tort clause, as laid down in the Dutch Civil Code, the Court of Appeal grounded its judgement on the basis of the duty of care under articles 2 and 8 of the European Convention of Human Rights.

Not surprisingly, as was the case in 2015 with the first decision, this judgment of 2018 has been applauded as well as been subject to criticism, and again from different perspectives. It was an important argument of the State that courts have no right to take decisions in this area. But the Court of Appeal disagrees. When asked by individuals or NGOs, courts are obliged to test government actions (including policies) against human rights. Thus, there is no infringement of the principle of separation of powers. On the contrary, testing government actions against human rights belongs to the power of courts. By only setting the required outcome of policies – at least 25% emissions reduction by the end of 2020 – the court leaves it up to the Cabinet and Parliament to discuss which policy interventions will achieve the aim, avoiding interference with policy-making.

One can argue, as Emaus (‘Subsidiariteit, preventie en voorzorg – Een verklaring van het arrest in de Klimaatzaak aan de hand van drie fundamentele beginselen in het recht onder het EVRM’, AV&S 2019, 56) does, that the judgment can be explained well in the light of the positive obligations to protect the life of citizens and their right to home and private law as well as the principles deriving from the case law of the European Court of Human Rights: the principle of subsidiarity, the prevention principle and the precautionary principle.

Furthermore, the Court of Appeal was right in passing the hurdle of the causal link. Similar climate cases in other countries were unsuccessful because of a lack of causal link between the government policies on the one hand and climate change impacts on the other (see also this blog). However, in this case, the Court of Appeal argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In order to give an order it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case.

However, the Dutch State still challenges that the legal arguments used are valid and has brought an appeal to the Dutch Supreme Court. The Dutch State says to be committed to reducing emissions by 25% by 2020 – already next year.  To quote: ‘the government will continue to make every effort to achieve this goal’. Nevertheless it is commencing cassation proceedings, to address the question of principle regarding the government’s freedom of choice in relation to policy.

Time will tell whether this ruling will also be upheld in cassation or whether the powers will again be rebalanced, by the decision of the Dutch Supreme Court. But even if this happens and the ruling would be quashed, this case will remain exceptionally influential. The rulings have already proven its merits and boosted global climate litigation.

I ended my talk at the conference with quoting Shelton: ‘Human rights law and laws for environmental protection may very well shift the balance toward imposing fewer risks than governments would favor based on the desire for economic betterment.’ To conclude, courts can initiate change, provided that the other branches of government are willing to accept it.

Anne Keirse

See for more details and references: J.M. Emaus & A.L.M. Keirse  ‘The Netherlands’, in: E. Karner & B.C. Steininger (eds.), Tort and Insurance Law Yearbook, European Tort Law 2018, Berlin/Boston: De Gruyter 2019 (to be published).