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Dutch State Ordered to Cut Carbon Emissions

Published online by Cambridge University Press:  20 January 2017

Elbert R. de Jong
Elbert R. de Jong*
Affiliation:
Utrecht Centre, Utrecht University, [email protected]
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Abstract

District Court of The Hague, 24 June 2015, The Urgenda Foundation v. The Netherlands, ECLI:NL:RBDHA:2015:7145

The Dutch State has to ensure that the Dutch emissions in the year 2020 will be at least 25% lower than those in 1990.

The parties agree that the severity and scope of the climate problem make it necessary to take measures to reduce greenhouse gas emissions. Based on the State's current policy, the Netherlands will achieve a reduction of 17% at most in 2020, which is below the norm of 25% to 40% for developed countries deemed necessary in climate science and international climate policy.

With this order, the court has not entered the domain of politics. The court must provide legal protection, also in cases against the government, while respecting the government's scope for policymaking. For these reasons, the court should exercise restraint and has limited therefore the reduction order to 25%, the lower limit of the 25%-40% norm.

Type
Case Notes
Information
European Journal of Risk Regulation , Volume 6 , Issue 3 , September 2015 , pp. 448 - 453
Copyright
Copyright © Cambridge University Press 2015

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References

1 District Court of The Hague, 24 June 2015 ECLI:NL:RBDHA: 2015:7145 (The Urgenda Foundation v. The Netherlands).

2 For example, in 2013 two Dutch lung specialists and the ‘Prevention Tobacco Youth foundation’ (Stichting rookpreventie jeugd) initiated legal action against the Dutch State. In their opinion, the tobacco industry and tobacco lobby have too much influence on the formation of Dutch national health policies related to tobacco. They requested the Court to prohibit the Dutch government to allow tobacco lobby groups to attend meetings related to national health policy. The case is still pending. And in 2014, the Dutch Supreme Court held that the Dutch government is not allowed to exclude small pubs from a smoking ban. Hoge Raad 10 oktober 2014, ECLI:NL:HR:2014:2928.

3 Kamerstukken II 2014/15, 32813, nr. 103.

4 Available at http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196&keyword=urgenda. (last assessed on 7 September 2015).

5 IPPC, “Climate Change 2014 Synthesis Report Summary for Policymakers”, 2014, available at http://www.ipcc.ch/pdf/assessment-report/ar5/syr/AR5_SYR_FINAL_SPM.pdf (last assessed on 7 September 2015). See also at. para. 4.32 of the judgment.

6 E.g. Artt. 21 and 22 of the Dutch Constitution, Artt. 2 and 8 of the European Convention on Human Rights, European Union Law and the international climate changes treaties.

7 Chris van Dijk, “Private–law liability for global warming”, NJB 2007/45-46; Coen Drion, “Van een duty to care naar een duty of care”, NJB 2007/45, p. 2857; Cox, Roger, “The Liability of European States for Climate Change”, 30 Utrecht Law Review 2014;Google Scholar Spier, Jaap, “Injunctive Relief: Opportunities and Challenges: Thoughts About a Potentially Promising Legal Vehicle to Stem the Tide”, in: Jaap Spier en Ulrich Magnus (ed.), Climate Change Remedies (The Hague: Eleven 2014), pp. 2–155.Google Scholar

8 Luff, Patrick, “Risk Regulation and Regulatory Litigation”, Rutgers Law Review 2011/61, pp. 173–215;Google Scholar Morriss, Andrew (et. al.,) Regulation by litigation, (Yale University Press 2008).Google Scholar

9 Urgenda is a citizens’ platform with members from various domains in society, such as the business community, media communication, knowledge institutes, governmental and non-governmental organisations. Urgenda aims for a fast transition towards a sustainable society, with a focus on the transition towards a circular economy using only renewable energy. The platform is involved in the development of plans and measures to prevent climate change.

10 This is the standard accepted in climate science and the international climate policy.

11 At para. 4.32 of the judgment.

12 At para. 4.52 of the judgment.

13 Art. 21 of the Dutch Constitution, the “no harm” principle under international law, the UN Climate Change Convention, with associated protocols, and Art. 191 TFEU with the ETS Directive and Effort Sharing Decision based on TFEU.

14 HR 5 November 1965, ECLI:NL:HR:1965:AB7079, NJ 1966,136 (Kelderluik).

15 Eddy Bauw, Green Series, Unlawful Act (Onrechtmatige daad), scheme from Book 6 of the Dutch Civil Code; Braams, Willem, Rijn, Arjen van and Scheltema, Martijn (ed.), “Climate and Law”, (Deventer: Kluwer 2010, at p. 5;Google Scholar) Chris van Dijk, “Private–law liability for global warming”, supra note 7, at p. 2866; Jaap Spier, Shaping the Law for Global Crisis, (The Hague: Eleven International Publishing 2012), at pp. 88-89.

16 At para. 4.63 of the judgment

17 At para. 4.65 of the judgment.

18 At para. 4.69 of the judgment.

19 At para. 4.73 of the judgment.

20 At para. 4.70 of the judgment.

21 At para. 4.71 of the judgment.

22 At para. 4.72 of the judgment.

23 At para. 4.78 of the judgment.

24 The Netherlands is one of these signatories.

25 HR 23 September 1988, NJ 1989,743 (Kalimijnenarrest).

26 The Court speaks about an annex I country to the Framework Convention on Climate Change.

27 See also Marjan Peeters, “Europees klimaatbeleid en nationale beleidsruimte”, NJB 2014/2109.

28 Commission Staff Working Document Executive Summary of the Impact Assessment Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A policy framework for climate and energy in the period from 2020 up to 2030 COM (2014) 15 final, SWD(2014)16, at p. 2.

29 At para. 4.81 of the judgment.

30 At para. 4.82 of the judgment.

31 At para. 4.82 of the judgment.

32 At para. 4.92 of the judgment.

33 At para. 4.95 of the judgment.

34 At para. 4.98 of the judgment.

35 At para. 4.95 of the judgment.

36 At para. 4.97 of the judgment.

37 At para. 4.98 of the judgment.

38 At para. 4.102 of the judgment.

39 Which is generally accepted to be the bear minimum to avoid dangerous climate change.

40 At para. 4.101 of the judgment.

41 See section II of this case note. See for an analysis in Dutch Enneking, Liesbeth & Jong, Elbert de, “Regulering van onzekere risico’s via public interest litigation?”, NJB 2014/23, pp. 1542–1551;Google Scholar

42 At para. 4.96 of the judgment.