(10) Litigation II: Urgenda
In this class, we will mainly talk about the Urgenda case (2015); but may also address the “Our Children’s Trust” litigation in the US, which operates on the basis of a similar concept.
→ In this blogpost you find guiding questions to the judgment, and also a more extensive case discussion. The latter is not complete, but should give a sufficient insight into the case.
You can find the Urgenda decision here. Its importance is stated by the judgment itself:
At the beginning you can find an overview of the decision:
The following points are interesting:
- the decision is directed against the state: it establishes an obligation of the State to provide protection. ( → earlier tort cases, e.g. in the US, were directed against the emitters).
- the judge orders the state to cut emissions; this is a broad obligation, and shows that judges can readily tackle the climate change issue even without expert knowledge on the details of CO2 regulation ( → by contrast, the Supreme Court in AEP v Connecticut claimed that such regulation would go beyond the competence of district judges).
- climate change is described as an “imminent danger”
- The court rejects the argument that unilaterally increasing the Dutch effort would be neutralized by global inaction ( → this argument had also been forwarded by the defendants in EPA v Massachusetts, and had also been rejected).
General reading questions
- Why does Urgenda have standing?
- Which role do the following issues play in the judgment: climate science; the UNFCCC regime; international law; human rights; European law; Dutch constitutional law; Dutch civil law. Which one was decisive, if any?
- On the basis of which legal provisions is the “duty of care” established? (in 4.35 you find a short overview of Urgenda’s arguments, in 4.52, and 4.83–48.6)
- How does the court evaluate attributability, damages and the causal link? (4.87–4.90)
- What happens in 4.94–4.102? ( → compare to the “political question doctrine” in EPA v Massachusetts, etc.!)
The case is decided on the basis of Dutch civil law. The Dutch Civil Code, Article 6:162 holds (translation):
You can see that the provision looks like a “typical” provision from tort law: it holds that a person is liable for damage somebody else suffered because of an unlawful act that is attributable to her.
According to Article 6:162, an omission (i.e., a failure to act) may constitute such unlawful act if it violates “what according to unwritten law has to be regarded as proper social conduct”. This includes a general “duty of care”. The specific obligations that follow from such “duty of care” — in this case, the duty of care owed by the Dutch state in relation to Urgenda — must be established. According to the court, the “duty of care” is informed by a number of provisions of international, European and national law. These
- establish a “minimum degree of care the State is expected to observe” (4.52); and
- define “what degree of discretionary power the State is entitled to in how it exercises the tasks and authorities given to it”.
In other words, while the state generally has discretion to decide which policy to implement, this discretion may be limited. In particular, the following provisions of international, European and national law are deemed relevant to define the state’s “duty of care”:
- Article 21 of the Dutch constitution (Grondwet) (4.55)
- The objectives and principles defined by the UNFCCC regime (4.56):
- the objectives of the European climate policy (laid down in Article 191 TFEU).
On the basis of these objectives and principles, the court defines the “duty of care” of the Dutch state in the following way:
- regarding points i-iii, the court holds that both parties agree as to the risk posed by climate change. This leads the court to conclude that “given the high risk of hazardous climate change, the State has a serious duty of care to take measures to prevent it.” (4.65)
- regarding point iv, the judgment holds: “The State has argued that it cannot be seen as one of the causers of an imminent climate change, as it does not emit greenhouse gases. However, it is an established fact that the State has the power to control the collective Dutch emission level (and that it indeed controls it).” (4.66)
- Point v (essentially proportionality): here the court relies mainly on the fact that, over the past decades, the Dutch government had committed to higher emission reduction targets (namely 30%). From this the court concludes that the measures are not too onerous, or too costly, etc. (4.70) Moreover, it refers to UNEP and IPCC to argue that “mitigation therefore is the only really effective tool” (4.71). This argument essentially neutralizes any cost-related argument by the government.
- point vi (i.e., degree of discretion): the court states that, in principle, the state has broad discretion to exercise its duty of care; however, “this discretionary power is not unlimited.” (4.74). In the light of the high danger risk related to climate change, “the State has the obligation to protect its citizens from it by taking appropriate and effective measures. For this approach, it can also rely on the aforementioned jurisprudence of the ECtHR” (4.74) ( → remember our discussion of Articles 2 + 8 ECHR?). This requires the state to choose the more prudent mitigation path.
Based on this, the court concludes:
Following standard tort law doctrine, the court checks attributability, damages and the causal link (4.87–4.93). These did not pose any problems for the court, and so it concluded:
Counter-arguments by the Dutch state
The counter-arguments of the Dutch state are considered by the court throughout the judgment, but we group them together here for systematic reasons. The court summarizes the government’s arguments as follows:
Interference of judiciary branch in affairs of the government?
The government argues that “allowing Urgenda’s main claim — an order for the State to limit greenhouse gas emissions further than it has currently planned –would constitute an interference with the distribution of powers in our democratic system.” (4.94) → this resembles the “political question doctrine”, which is always forwarded by defendants against climate change-related lawsuits in the US. The court rejects this argument, and argues (among other things):