BRUSSELS INSIDER #1 - October 16, 2018
Dutch court relies on European law to order more ambitious climate policy
by Sonja van Renssen
Few people had expected it, but a Dutch appeals court on 9 October upheld an earlier “historic legal ruling” ordering the Dutch government to accelerate carbon emission cuts.
In the case brought by climate NGO Urgenda, which has attracted worldwide attention, the court in The Hague ruled that, as the Guardian put it, “the severity and scope of the climate crisis demanded greenhouse gas reductions of at least 25% by 2020 – measured against 1990 levels – higher than the 17% drop planned by Mark Rutte’s liberal administration.”
Similar cases are being planned around the world, notes The Guardian – “from Norway to New Zealand from the UK to Uganda.” And let’s not forget the U.S., where over a dozen lawsuits have been filed, against oil companies as well as against the federal and state governments.
The Dutch government has said it will carry out the verdict even as it will probably take the case to the country’s High Court, to get clarity on its many ramifications. You can find the 20-page verdict here (in Dutch).
One interesting aspect about the verdict is that the judges base themselves, among other things, on articles 2 and 8 of the European Convention on Human Rights, an international treaty to protect human rights and political freedoms in Europe, drafted in 1950 by the then newly formed Council of Europe and adopted in 1953.
Article 2 protects the right to life and article 8 essentially the right to privacy. As the judges write in the verdict, “In summary, the State has the positive obligation on the basis of article 2 of ECHR to protect the life of its citizens within its jurisdiction, whereas article 8 of ECHR creates the obligation to protect the right to a home and private life.”
Relying on the findings of the IPCC (the Fourth and Fifth Assessment Reports) to determine the effects of greenhouse gas emissions on human life, the court has ruled that the State violates these obligations by not reducing emissions by at least 25% by 2020. It adds that this target should be regarded as a minimum, “whereby recent insights into the need for additional reductions to limit the temperature increase to 1.5°C have not been taken into account”.
The Netherlands, incidentally, is on course for a greenhouse gas reduction of 23% by 2020 (compared to 1990), but, as the court notes, with a wide margin of uncertainty (19-27%), which the court regards as unacceptable.
So what are we to think of this? The verdict has led to a lot of debate in the Netherlands about its ramifications. Critics charge that the court has assumed the role of the Parliament and thereby violated the separation of powers that ought to exist between the executive and legislative branches of the government on the one hand and the judiciary branch on the other.
Others have applauded the ruling, arguing that the law is meant to protect the citizens from violations of their rights, including by their own government. One commentator pointed out that the ruling is not unique: in 2015, the High Court in the Netherlands ruled that the state had to stop producing natural gas in and around the village of Loppersum in the province of Groningen because this was endangering their lives.
In Dutch newspaper NRC Handelsblad an interesting debate was published between two legal experts, a supporter of the verdict and an opponent, of which I will translate parts that I think provide some pertinent insights.
Professor Eddy Bauw of the University of Utrecht notes that “the court makes it crystal clear that it has a constitutional role to protect the fundamental rights of citizens, even if this is inconvenient for the government.”
Professor Lucas Bergkamp, a partner at Hunton Andrews Kurth in Brussels, who has represented the petrochemical industry in Europe (and whose views on climate litigation have been published on Energy Post), counters that “the court must indeed protect fundamental rights but it should not promulgate new rights. There is no such thing as a right to a good climate nor a right to emission reduction.”
Bauw: “What the court did is what it always does: to interpret the norms. In this case the right to life as established in international law. That this right is under threat cannot be seriously doubted.”
Bergkamp: “To come to this verdict, the court has to make a series of scientific analyses which it is not capable of.”
Bauw: “A court has to judge on many issues which it has no expert knowledge of. It asks for expert advice. In this case a global panel of experts has given its opinion. The court can rely on that. The state itself has already decided to reduce emissions., there is no difference of opinion about that.”
Bergkamp: “The panel [i.e. the IPCC] has not said that higher emissions will lead to more deaths than lower emissions. That would be unscientific since it depends on other factors such as adaptation measures. This court has followed a results-oriented reasoning that has no legal or empirical foundation. A legal ‘coup’ to save the climate!”
Bauw: “Thank God the empirical foundation is lacking. Otherwise sea level rise would already have happened. This is about the best possible judgments of experts. In view of the risks involved this fits in well with the European legal precautionary principle which holds it’s better to be safe than sorry.”
Bergkamp: “Climate science has become a policy-supporting precautionary science. On the basis of models experts think they can predict climate doom. Time and again they turn out to be wrong. The court could also have established that.”
Bauw: “All that the court does is to keep the state to earlier agreements against the background of an extraordinary situation which threatens the life of citizens. (…)”
Bergkamp: “Judges are masters of argumentation. By applying a smart legal trick, it seems as if the court is only applying existing law. In reality, the court is making policy, shoving aside the legislation and the constitution. This intellectualism shows an elitist, undemocratic view of politics. And it is a danger to our constitutional system.”
You may make up your own mind about whose side you are on! It will be interesting to see how similar cases will evolve in other countries.