Combatting climate change in court
In what appears to be a global novelty, a Dutch court has been demanded to issue an order for the State to effectively reduce CO2 emission levels in the combat against climate change.
Climate change skeptics may have a hard time these days, with temperatures in the US falling far below and temperatures in the EU rising far above average. Add to that the recent disastrous hurricanes in the Philippines and again the US and it becomes ever more difficult to avoid the impression that the weather is at least becoming increasingly fickle. In an ultimate attempt to get politics to do something about CO2 emission levels associated with climate change, the Urgenda action committee last November turned to The Hague District Court.
In its writ of summons (in Dutch) Urgenda demands that the court issues a declaration that the Dutch State is acting unlawfully by continuing to refrain from effectively reducing emission levels. In addition, it demands that the court issues an order for the State to actually reduce those levels, preferably by 40 percent in 2020, but by a minimum of 25 percent, compared to 1990 levels, or at least to present a feasible plan including a budget to parliament within six months.
The Urgenda case provides for an interesting example of so-called public law or public interest litigation. Urgenda stands for – what it considers, at least – the public or general interest of combatting climate change. It targets not citizens and industries as the primary tortfeasors, but the State, for not making its citizens and industries reduce their CO2 emission levels. That the Dutch Supreme Court is not per definition averse to such litigation is demonstrated by the SGP case. The case concerned the refusal of the Dutch State to oblige the SGP, a small political party of conservative Christians, to let women run for parliament on the party ticket. Although not a single SGP woman was willing to litigate against her party, the women’s rights action committee Clara Wichmann was deemed admissible to demand a declaration of unlawfulness, as it stood up for the general interest of all citizens in the Netherlands that comes with the enforcement of the right to equal treatment.
In the SGP case, the declaration of unlawfulness was in fact issued and upheld by the Supreme Court (and Strasbourg). This is not to say that the same will happen in the Urgenda case. Clara Wichmann could underpin the asserted unlawfulness with a treaty norm (Art. 7 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women), obliging contracting States to let women run for parliament on an equal footing with men. To be sure, one could debate whether such a norm is in fact violated if one last small political party continues to refuse to put women on the list. In the Urgenda case though, any norm containing numbers for CO2 emission level reduction is lacking (the Kyoto protocol has expired).
Obviously, the court could also issue a declaration of unlawfulness on the basis of the violation of unwritten law. That would, however, require the court to openly make the rather controversial – and therefore political – appraisal of the level of prosperity we are willing to give up in return for which CO2 emission levels, albeit in the legal terms of the Learned Hand formula. I doubt whether the district court is willing to do so, even apart from the constitutional complications that may come with issuing the orders Urgenda demands.
A slightly longer, Dutch version of this post was earlier published on the blog Publiekrecht & Politiek.