Environmental Human Rights Series: The Urgenda Case

Foreword

This series of articles provides an analysis of the recent recognition by the UN General Assembly (UNGA) of “the access to a clean, healthy and sustainable environment, as a universal human right” (UNGA, 2022). The recognition of a universal human right to a healthy environment has been a long-awaited accomplishment for environmental law scholars, which brought to a conclusion a long course of preliminary steps that have paved the way to such a result in past decades. This itinerary, made of scholarly contributions, judicial rulings and domestic legislative recognitions, has highlighted the multiplicity of connotations that can be attributed to such a fundamental concept. The different perspectives adopted by different cultures and different fields of study are a feature of the human right to a healthy environment, which deem it necessary for such a right not to be encapsulated in a single, one-dimensional notion. It will be observed that, even after the successful adoption of the above-mentioned Resolution by the UNGA, the debate has been florid on the multiplicity of perspectives which can be taken to interpret the words it contained. There is no doubt that judicial courts will be invested in the very important task of setting precise legal standards. This article, the fourth of the series, narrates and analyzes the judgment which is universally recognized as a potential cornerstone for the emergence of international responsibility - not necessarily bound to the notion of a healthy environment as a human right, yet related to environmentally-related wrongful conducts: the Urgenda Foundation v. the Netherlands case.

The Environmental Human Rights series consists of six articles:

1. Environmental Human Rights Series: Foundation

2. Environmental Human Rights Series: Critiques

3. Environmental Human Rights Series: Judicial Milestones

4. Environmental Human Rights Series: The Urgenda Case

5. Environmental Human Rights Series: The UNGA Resolution

6. Environmental Human Rights Series: Anthropocentrism (and Other Similar Problems)

The Urgenda Case

To better understand the nature of this historical judgment, it is important to recall some of the most important legislative progressions that characterized international climate change law before 2013. The 2010 Cancun Agreements (UNFCCC, 2012), for instance, marked an important milestone where States agreed to fix the specific objective of reducing emissions, at least regarding the “Annex I countries“, a category that includes all the “developed“ countries from the Kyoto Protocol classification. For such occasion, the target set for the EU, and consequently for the Netherlands, was quantified in the reduction of the total emissions during 2020 by a 25-40% margin compared to emissions in 1990, as stated in the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (“IPCC”) of 2017 (UNIPCC, 2007). In 2007, the Netherlands decided to set its emissions reduction goal to 30% below the emissions recorded for 1990. However, due to what has been defined as a “lack of concrete action and the lack of ambition” (Minnesma, 2020), the Netherlands had recalibrated its objective and drawn the limit to a 20% reduction by 2020.

Figure 1: The IPCC graph on climate objectives (Statista, 2017).

a) The Judgment by The Hague District Court

In November 2013, the Urgenda Foundation, a non-profit organization dedicated to climate change protection, brought a claim alongside 886 Dutch citizens against the Dutch Government alleging that the actions taken by the Netherlands to mitigate climate change were insufficient. More precisely, the foundation argued that the policies put in place could amount to hazardous negligence and that the government had failed in its duty to protect the community from the effects of climate change, therefore they sought the court’s authority to order a return to the reduction target of between 25-40%. The basis for these claims was largely drawn from environmental law and one of the claims resorted to a violation of human rights law (Peel and Osofsky, 2018).

The claim was presented before The Hague District Court where the tribunal adjudicated that the claims made by the Urgenda Foundation were founded. It is important to note that the case against the Netherlands was proposed, from a procedural point of view, under Dutch civil law and was not based directly on any environmental norm (Minnesma, 2020), but instead drew the contents of the Netherlands' duty of care from the environmental treaties which the State had adhered to. In particular, what was indicated as unlawful was the omission by the Dutch Government to take action and that they allowed the damages (in this case, future damages) to be a consequence of a lack of action.

It is equally important to note that the Court did not uphold Urgenda’s claim on the basis of a violation of any binding obligation under either international or domestic law. Instead, the Court imposed a generic “duty of care” on the Dutch government despite the existence of a margin of appreciation in the qualification of such a duty, whose content is left to be interpreted by established rules in international law. To reach their verdict, the judges found that the indications contained in the climate change law treaties which the Netherlands had been part of could be used to interpret the extent of the “duty of care”. In the court’s reasoning, available scientific data was often consulted in order to justify many of the conclusions (Urgenda, First Instance Court, 2015, para. 4.65).

Figure 2: Wind turbines placed off the Dutch coast (Renew Economy, 2022).

One of the defensive arguments put forth by the Dutch government claimed that the Netherlands could not be attributed to the emission of greenhouse gases. This argument touches upon the possibility of attributing the emissions, which originate from the activities of non-State actors (i.e. private actors), to the State. The judges addressed this by pointing out that the State had the power to strongly influence the total emissions of the activities which take place under its jurisdiction, and that it should do so accordingly (Urgenda, First Instance Court, 2015, para. 4.66).

Another important passage concerns the main defensive argument chosen by the State of the Netherlands: it was claimed that the choice of adequate policies is one that requires a political margin of appreciation and should not be influenced by the activity of the judiciary. This claim is also crucial for the general discussions about climate change law and State responsibility, as the substantiveness of some of the evaluations required by the wide margins of appreciation left by climate change law legislation are usually treated as a threat to the possibility that these norms could serve as a basis for responsibility.

The judges, whilst admitting the existence of a political space that is immune to judicial evaluation, asserted that when dealing with the question of risk for the citizens, they are also entitled to apply a “judicial review” of the government’s decisions (Urgenda, First Instance Court, 2015, paras. 4.94 - 4.102) Moreover, the judges attributed relevance to the fact that specific quantitative objectives had been fixed by important international agreements, specifically citing the Cancun Agreements. In the court's view, this allows one to express a judicial evaluation of the lawfulness of the political measures adopted by the State without exceeding the judicial scope of competence. Equally, the court dismissed the argument that the Netherlands’ efforts were not destined to achieve the problem if not followed by the other EU States by submitting scientific proof that the State’s argument was ill-founded. The court, thus, concluded that “the State – apart from the defence to be discussed below – has acted negligently and therefore unlawfully towards Urgenda by starting from a reduction target for 2020 of less than 25% compared to the year 1990 [...] orders the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year 1990, as claimed by Urgenda, in so far as acting on its own behalf“ (Urgenda, First Instance Court, 2015, para. 4.110).

Figure 3: The District Court expressly cited the Cancun Agreements as a decisive passage in their line of argumentation (UN Climate Change, 2010).

b) The Judgment by the Dutch Court of Appeal

The Dutch government appealed the judgment delivered by the District Court on all grounds, bringing the case in front of the Dutch Appeal Court. Judges substantially upheld in toto the decision that had been delivered by the District Court, also accepting the motivations contained therein. In particular, there was a ground worthy of further attention, namely, the violations by the Dutch government of the ECHR.

As was stated above, the District Court did not ground its decision on any rule of international law, entirely resorting to domestic civil and tort law. Nonetheless, the Urgenda Foundation, in response to the appeal made by the Dutch government, had added a ground of counter-appeal to be examined by the judges of the second instance. It was claimed that the foundation could be a direct victim due to the violation of Article 2 ECHR, which protects the right to life, as well as Article 8 ECHR, which protects the right to private life and family (Minnesma, 2020). The District Court had dismissed such a ground, alleging that Urgenda, as a legal person, did not possess the passive legitimacy to be considered a direct victim of violations of rights granted by the Convention (Urgenda, First Instance Court, 2015, para. 4.45).

Figure 4: The court of appeal recognizes the responsibility of the Netherlands on all grounds, (Bekker, 2019).

The judges of appeal, whilst rejecting the 29 grounds of appeal presented by the government representatives, sensationally overturned the position of the District Court with reference to the counter-appeal made by Urgenda. The appeal judgment does not address the question mentioned by the District Court concerning the reasons why Urgenda could not be considered a direct victim but merely proceeded to discuss the merits of the claim, implying that there would be no obstacles for a foundation to bring a claim under the ECHR. Nevertheless, the analysis concerning whether Articles 2 and 8 ECHR were to be considered violated is a matter of interest. The judges began by considering the two provisions as implying a general duty to positively act to preserve the substantial content of the human rights enunciated by the two articles and to prevent any infringement, which also encompasses the duty to protect these rights from any future threat of infringement, with only a caveat that a State may be exempted from such duties when the adoption of the necessary measures would “place an ‘impossible or disproportionate burden’ on the government” (Urgenda, Court of Appeal, para. 42).

The court then proceeded to detail a scientific analysis in order to verify whether the threat of violation of Articles 2 and 8 ECHR could be deemed as real and concluded that “a dangerous situation is imminent, which requires interventions being taken now” (Urgenda, Court of Appeal, para. 50). Thus, the judges found that the governmental choice to stray from the projected targets that had been agreed under the UNFCCC was not upheld on a valid scientific basis and that the less stringent target that had subsequently been set by the Dutch government would have excessively increased the risk of violating the rights contained in Articles 2 and 8 ECHR, notwithstanding the aforementioned political “margin of appreciation” (Urgenda, Court of Appeal, para. 42).

For these reasons, the Dutch Appeal Court found the Netherlands guilty of the violation of the ECHR - in addition to all domestic grounds - for the failure to take adequate measures to reach the mitigation objectives that had been agreed upon by adhering to the most important treaties in climate change law, with specific reference to UNFCCC targets. The case was eventually appealed again and proceeded to the Dutch Supreme Court, where the previous judgment was upheld on all grounds, including the new finding related to the Netherlands’ responsibility for violations of the ECHR. The third instance judgment will not be analyzed below, as it did not address any further significant element than the ones already observed by the previous judgments.

Figure 5: A moment of celebration between the lawyers of Urgenda Foundation and some of the 866 plaintiffs on the outcome of the Supreme Court judgment (Bekker, 2019).

c) The Relevance of the Case

From a legal point of view, the Urgenda judgment has to be acknowledged as a landmark decision in the scope of climate change law. For the first time in history, a State was held judicially responsible for the breach of climate change-related obligations. More specifically in the Urgenda case, a court addressed the issue of excessive greenhouse gas emissions by a State, examining “climate change on a legal basis that is not underpinned by a statutory mandate” (Lin, 2017). The points of interest of the present case are innumerable. Before turning to strictly legal points, it is important to mention the social impact of the decisions delivered by the Dutch courts. The case attracted a good amount of attention on national and international levels, both in terms of legal scholarship (Peel and Osofsky, 2020) and with regard to the general public (Spijkers, 2018). This is well exemplified by the call to arms to enhance participation in the case, which received responses from another 886 plaintiffs that acted as claimants along with the foundation.

From a strictly legal point of view, the Urgenda judgment is revolutionary. Most of the critical points that were characterized in legal literature as insurmountable obstacles were overcome by the tribunal’s reasonings. One notable passage concerns how the issue of causation was dealt with, where the court implied that factual causation and normative causation are to be treated on equal terms (Lin, 2017). The Dutch judges considered the scientific evidence related to the failure to comply with the commitments undertaken for climate change law as a contributing factor to the risk of suffering an injury (in this case, the violation of the right to life and of the right to private and family life) and, more importantly, as a sufficient threshold for the causation link to be fulfilled. It would appear that the judges implied the application of the “risk increase” criteria to the present scenario, without the necessity to precisely determine the threat of damage or damage that had already been suffered. The Urgenda decision also cleared the path for the interrelation between human rights law and climate change law, arriving at a proper judicial decision of responsibility.

Figure 6: Public upheaval was crucial in creating interest around the Urgenda judgment (Spiske, 2020).

It is too optimistic to conclude that this decision will clear the path for future claims as most of the grounds on which the Dutch tribunals found the State responsible related to Dutch civil and tort law only, which means that it cannot be confidently stated that this approach can be replied in other domestic systems. Nonetheless, identifying a responsibility under Articles 2 and 8 ECHR offers an interesting basis for future cases. The Court used the general, non-binding UNFCCC objectives as scientific evidence of the State’s failure to comply with domestic and European human rights law obligations, rather than considering these climate change law sources as obligations themselves.

It had been argued before that the 2°C objective enunciated in Article 2 UNFCCC could be read as a norm serving as an interpretative aid for the substantiation of general obligations stemming from climate change law treaties (Voigt, 2008). In Urgenda, the court adopted a similar approach, using the most authoritative indications in climate change treaties to replenish the empty spaces left by the domestic rules on the “duty of care”. It is possible for the same process to take place within other courts, by using the UNFCCC objectives to direct the conduct of States within the wide margin of appreciation left to them in the context of environmental law legislation. Aside from the predictions concerning replicability, the Urgenda decisions have undoubtedly paved the way for a promising path in climate change litigation.

Bibliographical References

Lin, J. (2017). The First Successful Climate Negligence Case: A Comment on Urgenda Foundation v. The State of the Netherlands (Ministry of Infrastructure and the Environment), Climate Law: 65-81;

Minnesma, M. (2020). “The Urgenda case in the Netherlands: creating a revolution through the courts”, in: Standing Up for a Sustainable World, ed. Henry, C., Rockström, J. and Stern, N. Edward Elgar Publishing: 140-151.

Peel, J. and Osofsky, H. M. (2018). A Rights Turn in Climate Change Litigation? Transnational Environmental Law (7)1: 37-67.

Peel, J. and Osofsky, H. M. (2020). Climate Change Litigation, Annual Review of Law and Social Science (16): 21-36; p. 29.

Spijkers, O. (2018). “The Urgenda case: a successful example of public interest litigation for the protection of the environment?“ in Courts and the Environment, ed. Voigt C. and Makuch Z. Edward Elgar Publishing: 305-345; pp. 305-309.

The Hague Court of Appeal, The State of the Netherlands v. Urgenda Foundation, ECLI:NL:GHDHA:2018:2610, Case number: 200.178.245/01.

The Hague District Court, Urgenda Foundation (on behalf of 886 individuals) v The State of the Netherlands (Ministry of Infrastructure and the Environment), First instance decision, HA ZA 13-1396, C/09/456689, ECLI:NL:RBDHA:2015:7145, ILDC 2456 (NL 2015), 24th June 2015, Netherlands.

United Nations Framework Convention on Climate Change (UNFCCC), Outcome of the work of the ad hoc working group on long-term cooperative action under the convention, 7 December 2012, FCCC/AWGLCA/2012/L.4.

United Nations Intergovernmental Panel on Climate Change (UNIPCC), Fourth Assessment Report of the Intergovernmental Panel on Climate Change, Climate Change 2007: Mitigation of Climate Change.

Voigt, C. (2008). State Responsibility for Climate Change Damages, Nordic Journal of International Law (77): 1–22.

Visual Sources