January 23, 2020
By Dr. Ingrid Leijten, Assistant Professor at the Department of Constitutional and Administrative Law at Leiden University
On December 20th of last year, the Dutch Supreme Court ruled in the case of Urgenda v. de Staat der Nederlanden, confirming the finding of the Court of Appeal that the State violates articles 2 and 8 ECHR if it does not reduce greenhouse gas emissions by 25% in 2020. Seconds after the live-streamed presentation of the summary of the judgment, online media in the Netherlands and beyond reported about this groundbreaking judgment: for the first time, worldwide, a court in a final judgment held a State accountable for not reaching certain climate goals – on the basis of human rights. The judgments of the District Court (2015) and the Court of Appeal (2018) had also received ample attention; their conclusions and argumentation have been both celebrated and criticized, and I will not try to summarize these discussions here. Neither will I provide a thorough analysis of the Supreme Court judgment in light of the case law of the ECtHR. The reason for this is that the ‘general interest character’ of Urgenda obstructs a straightforward comparison. Instead, I want to highlight what is interesting – as well as convincing – about the way the Supreme Court addresses the issue as a matter of human rights. I argue that the judgment provides a promising route, at least for some other climate cases, although it also raises questions about the role of human rights and the effectiveness of rights based climate litigation.
The Judgment of the Supreme Court
The case of Foundation Urgenda against the Dutch State essentially concerned the question whether the State is obliged to reduce, by the end of 2020, greenhouse gas emissions by at least 25% compared to 1990, and whether this can be ordered by a court. Both the District Court and the Court of Appeals answered this question in the affirmative, albeit only the latter did so on the basis of Articles 2 and 8 ECHR. Before the Supreme Court, the Dutch State argued that these articles were interpreted wrongly and that they cannot be applied to public interest cases which are allowed on the basis of Article 3:305a BW (the Dutch civil code). It moreover argued that there is no (international) legal obligation for the State to reduce 25% in 2020. By concluding that this obligation exists, the Court of Appeal failed to recognize the State’s margin of appreciation and the fact that as a single country, it cannot be held to comply with this standard. As a matter of Dutch constitutional law, courts cannot order that a Parliamentary Act be devised – the State emphasized that it is not up to the court to balance the various (political) interests at stake and reach conclusions on the basis thereof.
In its response to these complaints, the Supreme Court first discusses the danger and the effects of climate change, referring to scientific evidence found, amongst other sources, in reports of the Intergovernmental Panel on Climate Change (IPCC). It then continues with a discussion of Articles 2 and 8 (the right to life and to respect for private and family life, respectively) and the obligations that can be drawn from these rights. According to the case law of the ECtHR, on the basis of these articles States are obliged to take suitable measures in case of a real and immediate risk. This obligation also applies in case of environmental hazards, future risks and risks that threaten large groups or the population as a whole. The Supreme Court also notes that preventive measures are required, even if the materialization of the danger is uncertain. It then argues that relevant rules of international law are supposed to be taken into account when interpreting and applying the ECHR. Article 13 of this Convention contains the right of an effective remedy, which according to the Supreme Court entails that an ‘arguable claim’ concerning an alleged violation of the ECHR must be reviewed by a court in light of the ECHR and the Strasbourg case law.
Each country, according to the Supreme Court, is responsible for its own share. In the light of scientific evidence and internationally accepted standards, there is an urgent necessity for the Netherlands to reduce emissions by at least 25-40% in 2020. The Court then reviews the policy of the State, emphasizing that it reduced its reduction aims from 30% to 20% in 2011. The State however has not explained that and why, given the broad consensus, this policy is sound. Since measures taken at a later time must be more comprehensive and expensive to achieve the same result, and also increase the risk of abrupt climate change, such an explanation could be expected. According to the Supreme Court, the Court of Appeal was hence ‘allowed to rule that the State is in any case obliged to achieve the aforementioned reduction of at least 25% by 2020’ (para. 8.3.5).
What is new?
It is no secret that I was not entirely convinced by the Court of Appeal’s human rights reasoning (see, for example, here). How exactly did it distill such a precise requirement from broad rights norms that do not explicitly refer to environmental protection whatsoever? Of course, climate change is a human rights issue, and yes, the ECHR requires that sufficient measures be taken to address known risks, also when these concern the environment. But determining exactly how much should be reduced and by when, I thought, could be seen to fall within the State’s margin of appreciation. The gap between the ECHR’s individual rights standards and the general (and future) nature of the claim to me appeared too big to allow for the precise obligation to reduce 25%. Yet this time I am much more convinced, and for two reasons. First, I now see more clearly the existing (scientific and political) consensus on what should be achieved and when (shout out to the environmental lawyers who illuminated me on this). Second, the Supreme Court adds some crucial steps in its human rights reasoning that make it more elegantly reach the conclusion that Articles 2 and 8 are breached. These are worth reflecting upon.
First, the Court’s explanation of the ECtHR’s common ground method of interpretation (paras. 5.4.1-5.4.3) allows it to connect the Articles 2 and 8 ECHR and binding and non-binding international agreements that in turn refer to scientific evidence. After all, the right to life and to respect for private life require that the necessary measures be taken in the case of known risks, but in order to determine what these are – especially when there is no benefit of hindsight – more information is required. Common ground interpretation, as can be seen in the Strasbourg case law, allows for standards external to the Convention, such those found in agreements or even in treaties the State has not ratified, to be used in determining the content of a State’s obligation. Second, the reference made to Article 13 substantiates why the Supreme Court – regardless of the general and political character of the issue at stake – is held to review the case against the ECHR. (This adds to the Dutch constitutional argument that pursuant to Articles 93 and 94 of the Constitution – and in light of the prohibition of constitutional review – Dutch courts must apply all ECHR provisions that are ‘binding on all persons’.)
Third, and most importantly in my view, the Supreme Court puts emphasis on the lacking motivation or justification on the side of the Government for lowering its reduction aims. Crucial in this respect is paragraph 7.4.6:
‘… [T]here may be serious doubts as to whether, with the 20% reduction envisaged by the State at EU level by 2020, the overall reduction over the next few decades, which the State itself believes to be necessary in any case, is still feasible. … The State has not explained that and why, despite the above and taking into account the precautionary principle applicable in this context, a policy aimed at 20% reduction by 2020 can still be considered responsible. The State has not provided any insight into which measures it intends to take in the coming years, let alone why these measures, in spite of the above, would be both practically feasible and sufficient to contribute to the prevention of dangerous climate change to a sufficient extent in line with the Netherlands’ share. The State has confined itself to asserting that there “are certainly possibilities” in this context.’
The case pretty much turns on this point, for it allows the Court to bridge the gap between climate policies and human rights. If read in this way, the conclusion is not that the duty of care following from Articles 2 and 8 ECHR directly leads to a requirement of reducing 25% by 2020. Rather, the fact that these articles are involved requires the State to take the necessary measures; it appears that reducing 25% in this case is considered necessary, and the State fails to justify why it is no longer planning to do so.
This reminds of a ‘culture of justification’ approach to human rights: instead of playing the countermajoritarian difficulty card and asking what courts have to say about political decision making, fundamental rights in this understanding demand that reasons be given for State authorities’ interferences with fundamental rights or their failure to comply with the action they prima facie demand (cf., for example, here and here). In the case of Urgenda, this approach makes it unnecessary for the Supreme Court to engage in a balancing exercise. Its review can even be seen to be of a more ‘procedural’ kind – somewhat comparable to popular procedural types of review the Strasbourg Court uses in (sensitive) cases in which it is does not derive substantive standards from ECHR rights, but for example asks whether the national authorities in an insightful way balanced the relevant interests at stake. The issue at stake in Urgenda is definitely a matter of separation of powers, but I think that by relying on the lack of a justification, the court shows sensitivity towards this issue and is cognizant of its limited role.
So, is this the way to go?
The judgment is convincing in that it is clear that the rights to life and private life are at stake here and because these are linked to the requirement of justification against the background of existing scientific and political consensus. Still, one must be careful not to overemphasize this requirement when this downplays the material scope of human rights. What I mean is that the ECHR cannot be utilized to require justifications from States regardless of whether there is an infringement with an ECHR right. The ECHR does not provide courts with a carte blanche to deal with cases as they see fit. Yet this risk does not so much apply to cases like Urgenda, as there is increasingly less doubt about climate issues’ infringement on human rights. On the other hand, however, the danger of a justification oriented approach, which is similar to the risk identified when it comes to procedural review more generally, is that it is likely only a matter of time before authorities realize that they have to provide justifications, thereby potentially masking behavior that is or should not be considered human right proof from a substantive point of view. In the circumstances of Urgenda, however, it seems pretty unlikely given the existing knowledge that the State could have provided a sufficient explanation. Which also underlies the exceptional character of the case. In the Netherlands, some commentators argue that Urgenda sets a precedent on the basis of which courts can now interfere in all kinds of policy fields. I do not think we should be worried about this. In turn, however, this means that other climate cases can only benefit from the Urgenda route if there is sufficient evidence and consensus that a certain policy is required, and a clear lack of a justification from the State for why it nevertheless and actively pursues a different path.
The human rights reasoning of the Dutch Supreme Court builds on standards and modes of interpretation that can all be found in the case law of the ECtHR (as well as in that of other human rights bodies). This does not mean that what is happening here is business as usual, though. By cleverly combining starting points from the Strasbourg case law in an effort to tie human rights protection to the complex issue of climate change, the Dutch Supreme Court emancipated from its more cautious role in which it usually tends to emphasize the minimum standards set by the ECtHR and the accompanying margin of appreciation. Human rights norms and doctrines enable this, and rather than illuminating a big shift in the separation of powers, I think the Supreme Court judgment merely signals a willingness to hold the State accountable on the basis of fundamental rights, as has been common in many jurisdictions around the world for a long time. At the same time, when political inertia is being resolved by courts not necessarily eager but called to provide protection as a last resort, there is a risk that this leads to more inertness and Governments awaiting final court judgments to tell them what their exact human rights climate obligations are. This is a doom scenario, and I luckily do not have any quick proof that this is indeed what will happen. But combatting climate change is a fight against the clock and does not leave time for yearlong dialogues between courts and other branches on the goals that need to be achieved as a matter of right. It may thus be hoped that Urgenda instead triggers the realization that States should proactively protect human rights by taking the necessary measures and without hiding behind political disagreement or counterweighing interests.
 Note that the English translation of the judgment is an unofficial one. The ruling in Dutch can be found at https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2006.