The Hague District Court: Dutch State must take more action to tackle climate change

13 July 2015

Michelle de Rijke, Jos Webbink

In a landmark decision, the District Court of The Hague decided that the Dutch State must ensure a reduction of at least 25% greenhouse gas emissions from 1990 levels by 2020. This is the first time a court has ordered a government to set higher climate change targets.

The case was brought to the court by the Urgenda Foundation, an environmental organization. Urgenda, also acting on behalf of 886 individuals, argued that the state's current climate policy, which aims to achieve a greenhouse gas reduction of 17% by 2020, constitutes a breach of the state’s duty of care. According to Urgenda the State is acting contrary to this duty of care by not taking sufficient mitigating measures; this has led to a threat to the environment and consequently to the health of the population. Urgenda asked the court to order the state to ensure that greenhouse gas emissions from the Netherlands are reduced by 25% to 40% by 2020from 1990 levels, or to ensure a 40% reduction by 2030.

Urgenda pointed out that the current global levels of greenhouse gas emissions are likely to result in global warming of over 2°C, with potentially catastrophic consequences. The Netherlands make a significant contribution to these emissions. The Dutch government has the ability to regulate greenhouse gas emissions in The Netherlands and therefore, according to Urgenda, can be held accountable for the Dutch contribution to climate change. It is therefore argued that it has an obligation and responsibility to ensure Dutch greenhouse gas emissions are reduced, in order to prevent dangerous climate change. Urgenda substantiated its case by pointing to articles 2 and 8 of the European Convention on Human Rights (ECHR) and to various other national and international obligations.

The Dutch government argued that its current climate change policy aims to limit global warming to less than a 2°C increase (and is expected to achieve this) in conjunction with international and EU law, policy and targets. The state also argued that the solution to the global climate problem does not depend solely on Dutch efforts. It pointed out that it does not have a legal obligation under national or international law to achieve the emission reductions claimed by Urgenda. Granting the claims of Urgenda would also be contrary to the state’s policy autonomy and weaken the state’s international negotiation position.

The District Court considered the Urgenda claim in the context of international and EU climate change legislation and policy. The court also looked at the Dutch Civil Code and the Dutch Constitution. It established that the parties agree that the severity and scope of the climate problem make it necessary to take measures to reduce greenhouse gas emissions. The court considered that the Dutch emissions reduction target is below the standard considered necessary by climate change science and international climate change policy.

The court concluded that the relevant international, European (such as the ECHR) and national stipulations do not directly require the State to take more action to reduce greenhouse gas emission levels. However, according to the court, the stipulations indirectly influence the way the state’s duty of care, to protect and improve the living environment, must be interpreted. Considering the policy freedom of the State, the court held that this freedom is restricted. It was held that this was due to the imminent danger of climate change and the international agreement that the aforementioned reduction of greenhouse gas emissions by the Netherlands and other developed countries is necessary to meet the 2°C target. The court further considered that the costs for the State to accomplish a reduction further than 17% are not unacceptably high.

The court concludes that the State would fail its duty of care and be acting unlawfully against Urgenda by not achieving emissions lower than 25% to 40% by 2020. The court therefore ordered the Dutch state to ensure that greenhouse gas emissions achieve a reduction of at least 25% of 1990 levels by 2020.

This decision is groundbreaking. Never before has a court ordered a government to set higher climate change targets. Of particular note is that the court has ordered the State to adapt its policy with regard to the reduction of emission percentages when common practice is for the judiciary to allow the government to determine the way problems are actually tackled. In its judgment, the court concluded that there are no reasonable alternatives for reducing greenhouse gas emissions. In view of the imminent risks, there is no policy freedom left. For the Dutch government the verdict undoubtedly comes as an unpleasant surprise. The 17% reduction target was set after lengthy negotiations with numerous stakeholders in The Netherlands. The State is now studying the verdict of the District Court. It has three months to decide whether it wants to appeal.

The Hague District Court 24 June 2015 (Urgenda Foundation vs The State of the Netherlands), C/09/456689 / HA ZA 13-1396