Climate Change Litigation: A new era as Dutch Courts lead the way
On 20 December 2019 in a "historic victory for climate justice", the Supreme Court of the Netherlands held that on the basis of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR), the Dutch Government has a duty of care to protect its citizens from the dangerous effects of climate change. The ruling in the case of Urgenda v Dutch State, requires the Dutch State to take action to reduce its greenhouse gas emissions by at least 25% by the end of 2020, compared to 1990 levels.
This landmark "climate litigation" judgment is likely to inspire individuals of other nationalities to launch similar proceedings against national governments, especially in areas that have been hit by devastating climate events.
In 2013, the Urgenda Foundation, a Dutch non-governmental organisation with a hybrid name of "Urgent Agenda", initiated a claim against the Dutch State on behalf of 886 Dutch citizens who had been affected by disasters triggered by climate change, notably flooding. Urgenda alleged that the Dutch State exposed their citizens to danger, thereby breaching the State's duty of care, by not setting a sufficiently high target percentage reduction of greenhouse gases into the atmosphere for 2020.
The Dutch State had set a target of 20% reduction by the end of 2020, but amended this to a 14-17% reduction when it realised it was not going to meet the original goal. Urgenda wanted a reduction of 40% emissions, or alternatively a minimum reduction of at least 25% in the same timeframe. Urgenda based this on a report by the Intergovernmental Panel on Climate Change (IPCC), which found that industrialised economies need to reduce their emissions by 25-40% by 2020 compared with 1990, in order to limit global warming to under 2 degrees from the baseline level of 1850.
The Hague District Court found in favour of Urgenda and ordered the State to reduce its greenhouse gas emissions by at least 25% at the end of 2020, compared to 1990 levels. The Dutch State appealed this judgment, first to the Court of Appeal, who found in favour of Urgenda, and then to the Supreme Court, where the verdict of the lower courts was upheld.
The Supreme Court found that the State has a duty of care to citizens, based on Articles 2 and 8 of the EC HR, which provide for the right to life and the right to respect for private and family life and home, respectively. These provisions obliged the Dutch State to take protective measures that mitigate against the risk to individuals from dangerous climate change. The Court found that this could be achieved by limiting the emissions of greenhouse gases.
Although this decision applied to Dutch citizens, the verdict is likely to inspire similar proceedings around the world, particularly in areas hit by disasters caused by global warming. Examples include the Australian bushfires, which caused huge loss of property and wildlife.
Closer to home, in Autumn 2019, prolonged rainfall caused watercourses to burst their banks and flood thousands of hectares of farmland in the north of England.
DEFRA responded to the crisis by pledging an additional £60 million to the current flooding and coastal erosion fund of £2.6 billion. However, with dramatic and devastating weather events forecast to increase in both frequency and severity as a result of climate change, setting aside funds to help with the repairs may not be enough, as prevention becomes more attractive than cure.
The verdict of the Dutch Supreme Court gives discretion to the Dutch Government to decide what measures are required to reduce their emissions in such a short time scale. It will be interesting to see how the Dutch State meets this target and what effect that has on galvanizing other nations to follow suit.