Wednesday, 19 October 2016

Urgenda Foundation v The Netherlands (C/09/456689 / HA ZA 13-1396) - Case Comment

Much has been written about the infamous Urgenda-case, in which the Urgenda Foundation successfully challenged the Dutch government to adopt more stringent climate policies. http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196
For the first time a court forced a government to amend its climate change goals. The district court of The Hague found the current government`s approach insufficient to reduce the Dutch share in global emissions. The appeal of the government is still pending.

I wrote a little piece on one particular aspect of the verdict, the interplay between the precautionary principle and climate change policies.



Urgenda and the Precautionary Principle

Towards the end of the Urgenda ruling, the court turns its attention to the precautionary principle and the principle of prevention. [1] It has been suggested by parts of the legal literature that the Urgenda verdict represent a significant leap in the development of the precautionary principle. It has been argued that 
`The unique interpretation given to the precautionary principle in Urgenda is to require more action even if there is uncertainty about the effectiveness of current state action, as against uncertainty about scientific questions about climate change, or whether carbon dioxide deserves to be categorized as a pollutant. The argument seems to be that following the precautionary principle the state should take more immediate preventive action even if it has not been established by the petitioners (or there is uncertainty) as to whether the current action is `adequate and effective`[2]

This case-note takes a different view,  as the Urgenda verdict is not a significant leap forward in the development of the precautionary principle, but rather entails some ill-founded and debatable assumptions concerning precaution.The court uses article 191 (1) TFEU[3] as starting point for its observations and identifies three environmental law principles as most relevant for the Urgenda case:  the principle of a high protection level, the precautionary principle and the prevention principle.[4]  With respect to the precautionary and the prevention principle it assess:
`The precautionary principle also means that the Community should not postpone taking measures to protect the environment until full scientific certainty has been achieved. In short, the prevention principle means: “prevention is better than cure”; it is better to prevent climate problems (pollution, nuisance, in this case: climate change) than combating the consequences later on.`[5]
Although both principles are clearly separated by article 191 (1) TFEU, the court uses both principles interchangeably, as the conjunction `in short` in this statement suggests. This is not a one-off, but may be encountered at several points in the verdict.[6] The court`s reasoning does not meet the generally accepted definitions of both principles, which can be clearly distinguished from each other.[7] 
The commonly accepted `watershed` between prevention and precaution is uncertainty.[8] Where reasonable grounds of concern for the existence of an environmental threat can be established, but the existence of the threat is yet uncertain, the precautionary principle applies.[9] By contrast applies the preventive principle if the source of a threat can be identified reliably[10] and the existence of the threat can be deemed certain,[11] but the point in time when damage materializes, remains unknown[12] (‘if’, ‘how’ and ‘when’). Thus, the decisive difference is whether a threat is proven to exist (prevention) or its existence is a possibility, but is yet uncertain (precaution). The district court shied away from clearly categorizing climate change.
With regard to the second point, Roy and Woerdman argue that the interpretation of the precautionary principle in the Urgenda verdict could be replicated in other jurisdictions.[13] However, it appears as if the ruling is joining the ranks of a long-standing Dutch legal tradition to deploy a very strict interpretation of the precautionary principle. 
Since there is no clear-cut definition of the precautionary principle in international law, the European Union and, indeed, its Member States use a range of definitions. Arie Trouwborst situated these definitions on a sliding scale from rather lenient (United Kingdom) to rather strict (Netherlands, Germany).[14] In case of the Netherlands this strict interpretation is enshrined in a multitude of legal documents.[15]

One of the most pointed is a moratorium on gas drilling in the Wadden Sea, which was implemented in 2001 and discontinued later. Here a moratorium  was deemed necessary as precautionary action `as long as any uncertainties and doubts (…) have not been removed to a sufficient extent`.[16] The removal of all uncertainties before a certain activity (in this case gas drilling) may take place is stricter than the commonly accepted international definition of the precautionary principle in Principle 15 of the Rio Declaration. The latter is merely stating that `lack of full scientific certainty` about a potential threat might not be used as an excuse not to take action, but does not call for the removal of all uncertainties before a certain activity can get the  `go ahead`.
The Urgenda ruling has to be read against the backdrop of this Dutch tradition of strict interpretation of the precautionary principle. There are other traditions of interpreting the precautionary principle, even within the EU and the district court did not pay appropriate attention to the actual principle that it was deploying (precaution or prevention) and the respective legal consequences. Thus, it might not readily be assumed that the interpretation of the precautionary principle in Urgenda can be transplanted to other jurisdictions. 

To conclude, two points can be made on the Urgenda-case and the precautionary principle. First, the district court of The Hague, as well as subsequent commentators, applied a murky and incorrect amalgamation of the precautionary and the preventive principle. This flawed interpretation makes the reasoning of the case imprecise. Second, the Netherlands have a long-standing tradition of deploying a rather strong version of the precautionary principle, which does not exist in other EU and non-EU countries. As a consequence of both observations, it is, opposed to Roy and Woerdman, difficult to see how the use of the precautionary principle in the Urgenda verdict could be transplanted to other jurisdictions.


[1] The english translation of the verdict will be used as point of reference in this section. It may be accessed via:  http://www.urgenda.nl/documents/VerdictDistrictCourt-UrgendavStaat-24.06.2015.pdf [accessed 6/April/2016] (hereinafter: Urgenda english) para. 4.58 et sqq.
[2] `Situating Urgenda versus the Netherlands within Comparative
Climate Change Litigation` (2016)  Vol 34 Journal of Energy & Natural Resources Law  (forthcoming) 29 (hereinafter: Roy/Woerdman).
[3] Treaty on the Functioning of the European Union [2012] OJ C 326/47.
[4] Urgenda english para. 4.60.
[5] Urgenda english para. 4.61.
[6] For instance Urgenda english para. 4.73.
[7] For more on this see  Ruven Fleming and Leonie Reins `Shale Gas Development, Precaution and Prevention: A Conversation on Regulatory Responses and Risk Management` (2016) Energy Research & Social Science (forthcoming) (hereinafter: Fleming/Reins).
[8] Arie Trouwborst `Evolution and status of the precautionary principle in international law` (Kluwer Law International, The Hague 2002) 37-39; Arie Trouwborst Precautionary rights and duties of states' 94 (Martinus Nijhoff Publishers, Leiden 2006) (hereinafter: Trouwborst 2006); Charmian Barton `Status of the Precautionary Principle in Australia: Its Emergence in Legislation and as a Common Law Doctrine` (1998) Vol. 22 Issue 2 Harvard Environmental Law Review 535.
[9] Case T-70/99 Alpharma Inc. v Council of the European Union [2002] ECR II-03495, para. 152; Case C-192/01 Commission of the European Communities v Kingdom of Denmark [2003] ECR I-09693, para. 49; James Cameron and Will Wade-Gery and Juli Abouchar `Precautionary Principle and Future Generations` in: Emmanuel Agius `Future Generations and International Law` (Earthscan Ltd., London 1998) 99.
[10] Rosie Cooney `The Precautionary Principle in Biodiversity Conservation and Natural Resource Management` (International Union for Conservation of Nature (IUCN), Gland (Switzerland) and Cambridge 2004) 8.
[11] Nicolas de Sadeleer `Environmental Principles: From Political Slogans to Legal Rules` (Oxford University Press, 2002) 74/75 and 222 (hereinafter: De Sadeleer).
[12] De Sadeleer 75 and 158.
[13] Roy/Woerdman 31/32.
[14] Trouwborst 2006  213 et sqq.
[15] For a list see Ibid.
[16] Derde Nota Waddenzee, Deel 1: Ontwerp Planologische Kernbeslissing 2001 p. 12, quoted after Trouwborst 2006 215; emphasis added.

2 comments:

  1. Courts have indeed a difficult task to distinguish between the (application of) the principle of prevention and of precaution. The two are closely linked and cannot be separated as if there is a clear ‘watershed’ between them. The International Law Association (ILA) in its Washington Resolution on the Legal Principles Relating to Climate Change (2014) and the Commentary thereon in its 2014 Washington Report explicitly stated: “Increasingly, therefore, the two principles are treated as forming part of a continuum”. Therefore, in the ILA Legal Principles both principles have been joined in one article, 7A and 7B, and not in separate articles. The Resolution and report are available at http://www.ila-hq.org/en/committees/index.cfm/cid/1029.

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  2. Good to make one aware of the position of both principles in international law. I agree that both principles are very closely related. However, I sense that there are slightly different trends in international and European law. As opposed to international law, where both principles are increasingly seen as one (Marcel pointed to the relevant examples in his comment), this trend does not exist to the same extent in European law. When revising its fundamental legal documents in 2009, the EU decided to maintain both as distinctive principles (see for instance article 191 (2) TFEU, where they are clearly seperated). By 2009 the discussion about whether or not both principles should be considered as one was already rife. In the light of this, the decision of the EU legislator appears to be a conscious one and has to be respected when interpreting the law. It follows that if the legiaslator wants to have both principles viewed as seperated, a criterion to distinguish them is required.

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