December 28, 2021
By Sjoerd Lopik
Today marks the second anniversary of the Urgenda climate ruling of the Supreme Court (Hoge Raad) of the Netherlands (a translation of the ruling can be accessed here). With its ruling, the Supreme Court finalised the first case in which a national court issued a specific order to a government to reduce greenhouse gas (GHG) emissions on the basis of human rights. Urgenda, a Dutch non-profit sustainability foundation, had already won the case in first instance and appeals. With the Supreme Court ruling, the Dutch government also lost the appeal in cassation. The case of Urgenda was based on the right to life (article 2 ECHR) and the right to private and family life (article 8 ECHR). In the days after the Supreme Court verdict, the judgment was hailed as ‘groundbreaking’, the ‘strongest climate ruling yet’ and a ‘landmark for future climate change litigation’.
On the anniversary of the Supreme Court ruling, this article examines the ruling’s legacy after two years. To recap, I first provide a short summary of the Supreme Court ruling and the world-wide responses it received. After that, I examine what the Urgenda case did lead to, including similar cases in many other jurisdictions and similar cases brought before the ECtHR. I then discuss what the ruling did not lead to, given the fact that the Dutch government’s compliance with the verdict has been far from perfect. Fourthly, I consider what the ruling may lead to in the future, since we have surely not yet seen all its effects. I conclude this article with some thoughts on whether this second anniversary is a day to celebrate.
The Urgenda Foundation commenced its case against the Dutch government in 2013, seeking an order to reduce GHG emissions of the Netherlands. The court of first instance of The Hague in 2015 ordered the Dutch government to reduce GHG emissions by at least 25 percent by the end of 2020, compared to 1990 levels (a translation of the ruling can be accessed here). The Dutch government lodged an appeal, after which the court of appeal of The Hague in 2018 came to the same order (a translation of the ruling can be accessed here). After the ruling of the appeals court, the Dutch state lodged an appeal in cassation, which brought the case before the Dutch Supreme Court. On 28 December 2019, that court issued its Urgenda ruling.
The Supreme Court slightly sharpened the legal reasoning of the verdict of the court of appeal, but the order to reduce GHG emissions remained in place. Based on article 2 and 8 ECHR case law, the Supreme Court considered that ECHR contracting states are obliged to take suitable measures if a real and immediate risk to people’s lives or welfare exists and the state is aware of that risk. The Court found that climate change brings about such a risk, given the fact that it may endanger the lives and welfare of many people in the Netherlands. Based on treaty law, the Court found that the fact that the sources of climate change are global in nature does not release the Dutch government from the obligation to do its share. The Supreme Court therefore concluded that there is a positive obligation on the Dutch government to do its part against climate change based on articles 2 and 8 ECHR.
After concluding that climate change risks fall under the obligations of articles 2 and 8 ECHR, the next question for the Supreme Court was whether these obligations contain a specific obligation of result to reduce GHG emissions. To determine that specific obligation, the Supreme Court made use of the common ground method. To find such common ground, the Court relied on the 2007 Intergovernmental Panel on Climate Change report. This report concludes that the most industrialised countries (including the Netherlands) should lower their GHG emissions by at least 25 percent in 2020, compared to 1990 levels. The Supreme Court found common ground for this target to be law, because this target was mentioned (in agreements) at the United Nations climate conferences of Bali (2007), Cancún (2010), Durban (2011) and Paris (2015). The Supreme Court also considered the emission target of the Dutch government itself, which aimed to reduce GHG emissions by 30 percent by 2020.
On the basis of the above, the Supreme Court found a positive obligation for the Dutch government to lower its GHG emissions by at least 25 percent in 2020, compared to 1990 levels. As indicated in the introduction of this article, the Urgenda ruling was hailed as revolutionary. Needless to say, not all responses were positive. Various opinion makers and politicians criticised the ruling for being too activist. Furthermore, some thought that the Supreme Court delivered a political verdict and therefore violated the separation of powers. Nevertheless, many specialists in the field of environmental, constitutional, and human rights law believed the considerations of the Supreme Court were well-founded. As the UK environmental law scholar Pedersen wrote, the ruling ‘adds very little to the doctrinal points of law developed over three decades by the ECtHR itself’ (link). The Supreme Court analysed (ECtHR) jurisprudence and applied it to the facts (of climate change). In a way, it simply did its job.
The Urgenda case inspired NGOs all over the world to start proceedings against their governments based on a similar reasoning. The website of the Urgenda Foundation contains an overview of such cases. Several of these cases have already led to court orders for governments to take additional climate action. Examples of such instances include a verdict of the Irish High Court, forcing the Irish government to adopt more ambitious policies to reduce GHG emissions (the verdict can be accessed here). Two months ago, a French court ordered the French government to take responsibility for its failure to meet its own GHG emission targets (the verdict can be accessed here). However, not every case leads to victory for the plaintiffs, as can be seen in the Belgian Urgenda equivalent. Although the Brussels court partly upheld the claim of a Belgian climate foundation, it did not come to the requested emission reduction order (the verdict can be accessed here). The foundation has appealed the verdict. Another example of such a case is that of Plan B, which did not lead to an emission reduction order against the UK government (the verdict can be accessed here).
In addition to various domestic cases, the past years have also seen cases brought before the ECtHR with reasoning similar to the Urgenda case. In 2020, six Portuguese children and young adults issued a complaint against 33 member states in respect of the impact that climate change is having upon them. Their complaint is based on articles 2 and 8 ECHR. They also claim a breach of article 14 ECHR, because of discrimination based on age (see this post for background information). The KlimaSeniorinnen, a group of Swiss female seniors, in 2020 issued a similar case against the Swiss government. Besides articles 2 and 8 ECHR, the KlimaSeniorinnen also based their complaint on articles 6 and 13 ECHR, since they find that no Swiss court provided them with an effective legal procedure to commence climate proceedings (see this post for background information). It is not yet certain what the result of these proceedings will be, as I will discuss further below.
The Urgenda ruling not only led to new cases outside the Netherlands, but also influenced a new groundbreaking case in the Netherlands itself. In a proceeding brought before the District Court of the Hague by Friends of the Earth Netherlands (Milieudefensie), the Court ordered Royal Dutch Shell (Shell) to cut its GHG emissions (a translation of the verdict dated May 2021 can be accessed here). After world-wide climate cases brought against governments, this was the first case in which a private company was ordered to lower its GHG emissions. The summons in this case was inspired by the Urgenda case. The Court ruled that Friends of the Earth could not invoke the ECHR against Shell directly but used the ECHR in interpreting the duty of care under Dutch tort law. As a result of this case, the lawyer for Friends of the Earth, Roger Cox, who also acted as the lawyer of the Urgenda Foundation before the court of first instance, was named in Time Magazine’s list of the 100 most influential people of 2021. As expected, Shell has appealed against the decision.
The Urgenda case thus accelerated worldwide climate litigation. This article unfortunately must also discuss something that the case did not lead to. The Netherlands has so far not taken sufficient action to bring its GHG emissions structurally in line with the Urgenda target. As indicated above, the court of first instance had already in 2015 ordered the government to reduce its GHG emissions by at least 25 percent by the end of 2020, compared to 1990 levels. This verdict was provisionally enforceable (uitvoerbaar bij voorraad), meaning that the government was obliged to implement the ruling pending the appeal. The government, however, gave the impression that it preferred to wait until an irrevocable judgment was handed down before setting course to the Urgenda target of 25 percent reduction.
That is why after the December 2019 Supreme Court decision, the Dutch government had to urgently seek to implement climate measures to reduce its 2020 emissions. Preliminary emission statistics indicate that the Dutch government eventually seems to have met the Urgenda target. Compliance with the Urgenda order, however, was largely due to external factors and not to policy. The Dutch 2020 GHG emissions dropped as a result of lockdown measures imposed because of the Covid-19 pandemic. Additionally, one of the main coal-fired power stations in the Netherlands experienced a technical failure over a large part of 2020, which also led to significantly lower GHG emissions.
The Urgenda case also did not lead to a sufficient amount of climate measures in 2021. The order following from the Supreme Court Urgenda ruling deals with Dutch GHG emissions in 2020. However, from the reasoning of the ruling, it is clear that the Dutch government must reduce its emissions beyond 2020 as well. The ruling’s 2020 target simply is a dot on a downward emissions line. This was recognised by the Dutch Minister of Economic Affairs and Climate Policy in June 2020, when he told the Dutch parliament that the Urgenda target of 25 percent also applies after 2020. However, a year later, the Dutch State Secretary for Economic Affairs and Climate Policy was quoted in a newspaper interview stating that meeting the Urgenda target in 2021 is not top priority. Recent emission statistics show that the Dutch GHG emissions over 2021 will likely be higher than the Urgenda target that was set for the end of 2020. The outlook for the coming years is more hopeful due to a recent Dutch coalition agreement, as I will discuss further down this article.
The paragraphs above have outlined what the Urgenda case did and didn’t lead to. This article must also discuss what the case may lead to in the future, since we have certainly not yet seen all its effects. Firstly, additional legal action against the Dutch government may be underway. Given the government’s lack of compliance with the ruling, the Urgenda Foundation announced in June 2021 that it will once again start legal proceedings. The foundation indicated it planned to seek to impose periodic penalty payments (dwangsommen) in case the Dutch government would remain incompliant. Marjan Minnesma, the chairperson of Urgenda, said that the foundation would most likely also commence proceedings before the ECtHR to ensure the Dutch government will take further climate action. However, the tone of voice of Urgenda changed after the coalition agreement for a new Dutch administration of 15 December 2021, which includes more far-reaching climate ambitions. Minnesma stated that judicial proceedings to enforce compliance with the Urgenda ruling would not be necessary if the government executes those ambitions.
While the Urgenda case was related to 2020 GHG emissions, the reasoning of the Supreme Court may very well be used to commence proceedings against the Dutch government for GHG emissions beyond 2020. Therefore, it is reasonable to expect that NGOs will try to force the state to meet its future climate targets. The most-named target at this moment is for 2030, for which the Netherlands at this moment has a 49 percent emission reduction target while the EU target is 55 percent. The Netherlands Environmental Assessment Agency (Planbureau voor de Leefomgeving), the Dutch government’s climate audit office, calculated in October 2021 that additional climate policy is required to achieve those ambitions (a translation of the agency’s report can be accessed here). The aforementioned coalition agreement of December 2021 even proposes to raise the Dutch emission target for 2030 to 60 percent.
Based on the above, new cases may be expected before the Dutch courts. There is also a number of cases pending in courts outside the Netherlands, as I have discussed above. In the coming years, we will see further judicial interpretation of climate change in light of the ECHR. The ECtHR itself will most likely rule on climate change also. What we already know is that Sicilianos, the President of the ECtHR, responded positively to the Urgenda ruling: “By relying directly on the Convention, the Dutch judges highlighted the fact that the European Convention of Human Rights really has become our shared language and that this instrument can provide genuine responses to the problems of our time.” (the full speech can be accessed here). For the analysis of climate change by the ECtHR itself, we will have to wait for its first climate judgments. Although the Portugese Youth and the KlimaSeniorinnen cases have been accorded priority treatment, it may take years before we will see the first Strasbourg climate judgment.
Two years after the Urgenda climate ruling of the Supreme Court of the Netherlands, we can conclude that the case has been extremely influential. It has inspired similar cases in many jurisdictions, of which many have led to orders to governments to take more ambitious or specific climate action. The ECtHR has yet to rule on the cases brought before it that are inspired by the Urgenda case. In legal literature, many agree with the Dutch Supreme Court and find that articles 2 and 8 ECHR do give rise to climate obligations (for an interesting overview, see this speech of ECtHR judge Eicke). In a few years, we will know whether the ECtHR also agrees. The Urgenda case has encouraged many to bring climate change to the attention of domestic and international judges. Such cases have already led to emission reduction orders being imposed on governments worldwide. These are surely reasons to consider this second anniversary of the Urgenda ruling a day to celebrate.
There are also reasons why this anniversary is bittersweet, to say the least. Although a variety of Urgenda-inspired climate litigation led to obligations for governments to reduce their GHG emissions, such emissions overall continue to rise worldwide. Furthermore, the compliance of the Dutch government with the verdict has been far from perfect. The government seems to have ignored the judgments of the court of first instance and the court of appeals, while these were provisionally enforceable. While it may be argued that the state strictly complied with the order of the Supreme Court, this was largely due to the Covid-19 pandemic and technical failures of a major coal-fired power station. Although the ruling regarded 2020 Dutch GHG emissions, its reasoning may very well be used for understanding that the government’s mitigation obligations go beyond 2020. However, Dutch GHG emissions in 2021 will most likely be higher than the Urgenda order target. These facts make the government’s response to the Urgenda ruling questionable in light of the rule of law and problematic in light of the climate crisis. Hopefully, the ambitious climate policies announced in the recent Dutch coalition agreement will be better adhered to.