On 20 December 2019, the Supreme Court of the Netherlands (the Court) issued its landmark decision in State of the Netherlands v Urgenda (the Urgenda decision) confirming the Dutch Government (the State) had acted unlawfully in taking insufficient action to prevent dangerous climate change. The State was ordered to immediately reduce its greenhouse gas (GHG) emissions to 25% by 2020 in accordance with its human rights obligations.

Background to Proceedings

In 2013, the Urgenda Foundation, an environmental organisation, and 896 Dutch citizens (the Plaintiffs) commenced proceedings against the State seeking an order requiring it to reduce GHG emissions in accordance with international obligations (see Figure 1). Specifically, the 2007 IPCC report, requires ‘developed’ nations as listed in Annex I of the United Nations Framework Climate Change (UNFCCC) (including the Netherlands) to make reductions of 25 – 40% by 2020 in comparison to 1990 levels. Though having committed itself to this target in 2007, the State later reduced its target to 14 – 17%.

In 2015, the Hague District Court found in favour of the Plaintiffs and ordered that the State reduce its GHG emissions to 25% by 2020 basing its conclusions on the Dutch civil code. The State appealed and in 2018 the Court of Appeal upheld the previous order on the basis of obligations from the European Convention of Human Rights (ECHR).

The State lodged an appeal in cassation to the Supreme Court and an advisory opinion was issued urging the court uphold the earlier decision. On 20 December 2019, the Supreme Court issued its judgment rejecting the State’s appeal on all accounts.

The climate change science was largely agreed upon by the parties in accordance with the UNFCCC and subsequent COPs, namely that increased GHG emissions contribute to the warming of the Earth, which may lead to extreme heat, deterioration of air quality, rising sea levels, and excessive rainfall and flooding (of particular concern to the low-lying Netherlands). Said impacts may affect quality of living, food and water supply, housing and health. The dispute did not concern the need for mitigation of climate change, but the pace and level at which the State is required to do so.

Climate Change and Human Rights

In grounding its decision predominantly on human rights obligations, the Court has contributed to greatly needed discussion on the intricate relationship between human rights, State responsibility, climate change and the environment.

Positive Obligations

Whilst the ECHR does not specifically contain provisions on the protection of the environment, the Court relied upon case law from the European Court of Human Rights (ECtHR) interpreting Articles 2 (right to life) and 8 (right to private and family life) to encompass risks posed by certain environmental issues which may have direct consequences on a person’s life, including natural disasters and hazardous industrial activities.

It stated that both articles place a positive obligation on States to take appropriate measures to safeguard the lives of those within its jurisdiction. The Court confirmed a requirement for a ‘real and immediate risk’ which is ‘genuine and imminent’. Regrettably, the Court did not discuss whether the risk of transboundary harm affecting non-nationals is applicable. This was confirmed in the recent advisory opinion of the Inter-American Court of Human Rights which held that States can be held responsible for acts or omissions which cause environmental damage to persons outside their own jurisdictional territory.

Significantly, the Court confirmed that the positive obligations apply to risks which may materialise in the long term, including to future generations. Further, this protection is not limited to specific persons but to society as a whole. Finally, the ’precautionary principle’ requires States to exercise due diligence in adopting reasonable and suitable measures even if a risk posed is uncertain. Whilst the obligations imposed on a State must not result in an impossible or disproportionate burden, the State must ensure mitigation and adaptation measures.

Responsibility for a Global Issue

On a global scale, the Netherlands’ output of GHG emissions is relatively small. This proved to be irrelevant as the Court confirmed that each country is responsible to do ‘its part’ to counter the global risk of dangerous climate change. It used the common ground principle in confirming that the 25% reduction target is based on global consensus, internationally accepted standards and scientific insights. In doing so, the Court placed great significance on soft law and non-binding international instruments in confirming the Netherlands’ responsibility to fulfil international commitments.

Conclusion

The Urgenda decision was praised by many, including the UN High Commissioner for Human Rights, for its contribution to climate change action. Noting the State has only 11 months to meet its reduction targets, amendments to its emissions policies will be watched closely. In the meantime, all eyes are on the current climate change cases around the globe as to how this case will impact future decisions (including those against corporations) and national climate change policies.