Groundbreaking Climate Case: The Urgenda-Appeal Verdict (The Hague Court of Appeal Case No 200.178.245/01) Case Comment

On 9 October 2018 the Hague Court of Appeals issued a ground-breaking verdict in the appeals case Urgenda Foundation v The Netherlands, that has been discussed earlier on this weblog. The court of appeals upheld the intial verdict of 2015 and rejected the appeal of the Netherlands, ordering the state to achieve a level of reduction of greenhouse gas emissions by end-2020 that is more ambitious than envisioned by the state in its current policy. The Netherlands are now obliged by the court to reduce its greenhouse gas emissions by at least 25% by the end of 2020, compared to 1990-levels.  The decision is based on the duty of care under articles 2 (the right to life) and 8 European Convention on Human Rights (ECHR) (the right to family life, which also covers the right to be protected from harmful environmental influences). From a legal theory point of view the decision raises questions about the possible interpretation of the precautionary principle.

The Netherlands submitted 29 grounds of appeal against the initial verdict to the Hague Court of Appeals. The initial question in the appeals case was whether or not the Urgenda Foundation was inadmissable to the case in the first place, because it cannot invoke article 34 ECHR directly. This point has now been rejected by the Hague Court of Appels (para. 35). The court says that Dutch law (and not the ECHR or the European Court of Human Rights (ECtHR)) is decisive in determining access to the Dutch courts -  and that this access is granted by Book 3 Section 305a of the Dutch Civil Code to Urgenda. As a result of this specific provision of Dutch law is Urgenda entitled to invoke articles 2 and 8 ECHR on behalf of natural persons and the current generation in general (which they did).


Turning to the substantial arguments, the main question concerned articles 2 and 8 ECHR. The court ruled that these articles may also apply in environment-related situations and that the state, under both articles, has a duty of care to prevent future infringements. However, the court went along with the ECtHR`s case law, according to which the state has a wide margin of appreciation in choosing its measures. But the court goes on by saying that `if the government knows that there is a real and imminent threat, the State must take precautionary measures to prevent infringement as far as possible`(para. 43). It could be an issue here that the court translated its Dutch verdict into an official english version in a hasty manner. Whereas the english text mentions the precautionary principle, the Dutch text says `preventive principle`.


The question is which of these two is correct, since the preventive and the precautionary principle are two distinct principles of law. If the precautionary principle was meant by the court (as suggested by the english version of the verdict), it would be an odd interpretation of the precautionary principle, which applies in cases of scientific uncertainty and not when the threat is already `real`. In such situations of `real` threats the preventive principle applies - a point made earlier on this weblog and in scholary works. Unfortunately, the Hague Court of Appeals decided not to critically reflect upon the odd stretch in the interpretation of the precautionary principle that the first instance engaged in, but instead created new ambiguities by issuing English and Dutch texts at the same time, which are not coherent in this point. This is not conducive to fortifying the judgement against criticism from a legal theory point of view.


The following, ultimate, question of the case is whether or not the state acted unlawfully by refusing to aim to reduce greenhouse gas emissions by at least 25 % by end-2020. The state argued that with its 20% reduction target it upholds its legal obligations that have been placed upon it at EU level. The court went on to attack the presumptions on which the state based its climate targets. Particularly painful for the Dutch government will be the fact that the court is highly critical of the assumed contribution that negative emission technologies, or technologies like Carbon Capture and Storage (CCS), which permanently store CO2 underground, can make in combatting climate change. The court, basing its judgement on scientific reports, sees `highly uncertain` effects and contends that climate scenarios which are based on such technologies are not `very realistic`(para. 49). This is a serious blow for the Dutch government, which only a couple of months ago, published plans, according to which exactly these technologies are supposed to deliver a big share of reduction of greenhouse gas emissions.


The court then went on describing why and how the state knew for a long time already that a 25-40% reduction by 2020 would be needed to achieve the 2 degree celsius goal for global warming.  Crucially, earlier plans of the Dutch government of 2011 actually stated 30% reduction by 2020 as the Dutch target. This target, issued in 2011, has later been amended (para. 52). The court deduces from this that the government itself actually believes that 30% reduction is needed, as the state did not give any reasons as to why the reduction to a 20% target would be credible. The court was, thus, of the opinion that a reduction obligation of at least 25% by end-2020 would be in line with the state`s duty of care.


In the remainder of the judgement the court is dealing with a whole bunch of further defence arguments of the state. Notable here is, once again, the court`s possible strange interpretation of the precautionary principle. In para. 63 the court is giving a correct interpretation of the precautionary principle. In contradiction to the threshold set in its earlier statement about a `real` threat, the court now argues with regard to the efficacy of the reduction scenario that `the circumstance that full scientific certainty regarding the efficacy of the ordered reduction scenario is lacking does not mean that the State is entitled to refrain from taking further measures. High plausibility (...) suffices`(para. 63).


This statement has to be applauded. However, it is questionable why then earlier in the judgement a `real` threat was also possibly grouped under the precautionary principle (at least in the english translation) (and not under the preventive principle: for the difference see here). If the court in para. 43, indeed means the precautionary principle there would be an incoherence in the thresholds for application of the  principle that could lead to the situation that the precautionary principle is applied without any distinction to all sorts of threads, ranging from highly hypothetical to clear and scientifically proven ones. The court brushes over this point, which might indicate that it either made a translation mistake or the court simply did not think about how and when to use the precautionary principle v the preventive principle. In both cases this is a sloppy treatment of environmental law principles that has to be considered a setback in an otherwise interesting verdict.


With respect to the separation of powers and the role of courts in Dutch society (trias politica), the court in effect argues that the Netherlands is a monist state, so that the court is obliged to apply provisions with direct effect of treaties to which the Netherlands is party, including articles 2 and 8 ECHR. In fact, the court states that the treaties would even take precedence over Dutch laws that deviate from them (para. 69).


The court concludes from all of the above that the state has done too little to prevent dangerous climate change. `Targets for 2030 and beyond do not take away from the fact that a dangerous situation is imminent, which requires interventions being taken now`(para. 71). `Neither can the State hide behind the reduction target of 20% by 2020 at the EU level` (para. 72). `Based on this, the Court is of the opinion that the State fails to fulfil its duty of care pursuant to Articles 2 and 8 ECHR by not wanting to reduce emissions by at least 25% by end-2020. A reduction of 25% should be considered a minimum, in connection with which recent insights about an even more ambitious reduction in connection with the 1.5° C target have not even been taken into consideration`(para. 73). `On these grounds, the State’s reliance on its wide ‘margin of appreciation’ also fails. The Court furthermore points out that the State does have this margin in choosing the measures it takes to achieve the target of a minimum reduction of 25% in 2020`(para. 74).